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Filing # 54581164 E-Filed 04/03/2017 08:03:20 PM
IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO.: CACE-14-001087
PLANET T UNIFORMS, INC.,
Plaintiff,
vs.
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.
/
DEFENDANTS IUNIFORMS INC. AND RICHARD SHELLOW’S MOTION TO
DISMISS COUNTS 7-10 AND 19-20 OF THE SECOND AMENDED COMPLAINT
Plaintiff filed a Second Amended Complaint that persists in all of the deficiencies that
plagued its first two tries. Plaintiff was ordered to plead tortious interference and
misappropriation of trade secrets with greater specificity, and Plaintiff stipulated to do so, Yet
Plaintiff's Second Amended Complaint still fails to state the elements of those causes of action—
or ultimate facts that would support them.
This case has been pending for three years, and Plaintiff has been unable to muster
factual allegations to support causes of action against defendants iUniforms, Inc. or Richard
Shellow—who were only brought into this case a year and a half after its commencement. At this
point the Court can only conclude Plaintiff is unable to do so, wherefore its causes of action
against {Uniforms and Shellow should be dismissed, this time with prejudice.
*4* FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 4/3/2017 8:03:20 PM.****CASE NO.: CACE-14-001087
L Introduction: Previous Motions to Dismiss and the Parties’ Stipulation
1. This case arises out of Plaintiff's failure to secure a contract to be the school
uniform vendor for Defendant, Florida Charter Foundation, Inc. d/b/a Franklin Academy Charter
School (“Franklin”).
2. After failing to secure the contract with Franklin, Plaintiff sued Franklin and
others in January 2014, alleging various causes of action. A year and a half later, Plaintiff
Amended its Complaint! to, among other things, plead causes of action against the movants here:
iUniforms (the school uniform vendor currently doing business with Franklin) and Richard
Shellow (iUniforms’ president). The Amended Complaint alleged three causes of action against
iUniforms and Shellow: Tortious Interference with Contractual Relationship; Tortious
Interference with Advantageous Business Relationship; and Misappropriation of Trade Secrets.
3. All of the defendants filed motions to dismiss (except Franklin, which answered
the Amended Complaint). On February 7, 2017, the Court heard the Motions to Dismiss of
defendants Discovery Schools, Jon Thomas Rogers, and Scott Sznitken, who also sought to
dismiss counts for tortious interference and misappropriation of trade secrets. ({Uniforms’ and
Shellow’s Motions were set for a later date).
4. The Court granted the motions to dismiss “for reasons stated on the record.” See
Order granting motions to dismiss (Feb. 7, 2017). Those reasons were:
THE COURT: The motion is granted; however, I agree with you, I think
it’s all a matter of adding facts clarifying a few things. I’m not particularly
clear what was interfered with. Fraud definitely needs additional facts in order
to clear that up. Statute of frauds, that’s easy enough. I figured it was going to be
something like an emblem on a shirt because they all do that.
' Plaintiff's Amended Complaint was deemed filed on August 10, 2015, pursuant to this Court’s
Agreed Order on Plaintiffs Motion for Leave to Amend Complaint.
2CASE NO.: CACE-14-001087
I definitely don't see what steps were taken to protect the trade
secrets at all, but, again, that can be alleged. Probably the vast majority is the
affirmative defenses, but be that as it may, those are certainly necessary facts.
See Transcript of February 7, 2017, hearing on Motions to Dismiss, at 28:18-29:5 (emphasis
added), attached hereto as Exhibit “A.”
5. Plaintiff agreed to amend its Amended Complaint in certain respects. As to its
counts for misappropriation of trade secrets, Plaintiff agreed to:
Plead any cause of action for misappropriation of trade secrets under Florida’s
Uniform Trade Secrets Act, rather than as a common-law cause of action.
Consistent with the Court’s oral remarks at the close of the February 7, 2017,
hearing, such pleading must include allegations of Planet T’s reasonable efforts to
maintain the secrecy of its alleged trade secrets.
Stipulation, at § 3.A.
6. As to Plaintiffs counts for tortious interference, Plaintiff agreed to plead with
greater specificity:
e “the nature and identity of the contract and/or relationship allegedly interfered
with;”
e “Plaintiffs legal rights in the alleged relationship and the actual and identifiable
understanding or agreement which in all probability would have been completed
had the defendant(s) not interfered;” and
e iUniforms’ and Shellow’s knowledge of the relationship allegedly interfered with,
intent to interfere, and acts of interference.
Stipulation, at J 3.B.—1.
7. Thereafter Plaintiff filed its Second Amended Complaint, which continues to
attempt to state causes of action against i1Uniforms and Shellow for misappropriation of trade
secrets and tortious interference.
8. Yet despite Plaintiff's Stipulation, and contrary to Florida law, Plaintiff pled
improper “common law” causes of action for misappropriation of trade secrets, rather than under
Florida’s Uniform Trade Secrets Act.CASE NO.: CACE-14-001087
9. Moreover, the Second Amended Complaint contains no additional facts—and
fails to state ultimate facts—sufficient to state causes of action against iUniforms and Shellow
for misappropriation of trade secrets or tortious interference. Trade secrets are not alleged, the
existence of an enforceable contract is not alleged, and there are no ultimate facts showing
iUniforms or Shellow’s knowledge, intent, or actions constituting either misappropriation or
tortious interference.
10. This is Plaintiffs third attempt overall to plead causes of action. The Court
ordered Plaintiff to re-plead, and Plaintiff stipulated to re-plead, it’s causes of action with greater
specificity as to misappropriation and tortious interference; but Plaintiff failed to do so. At this
point, the Court can reach only one conclusion: Plaintiff is unable to state causes of action
against iUniforms and Shellow. Accordingly, for the reasons more fully articulated below,
Plaintiff's Second Amended Complaint against iUniforms and Shellow should be dismissed with
prejudice.
Il. Standard on Motion to Dismiss
11. “A motion to dismiss tests whether the plaintiff has stated a cause of action.” Bell
v. Indian River Mem’ Hosp., 778 So. 2d 1030, 1032 (Fla. 4th DCA 2001). “When determining
the merits of a motion to dismiss, the trial court’s consideration is limited to the four corners of
the complaint, the allegations of which must be accepted as true and considered in the light most
favorable to the nonmoving party.” Jd.
12. “In order to state a cause of action, a complaint must allege sufficient ultimate
facts to show that the pleader is entitled to relief.” Edwards v. Landsman, 51 So. 3d 1208, 1213
(Fla. 4th DCA 2011). Bare conclusions, unsupported by facts, “serve no useful purpose.” Ellison
v. City of Fort Lauderdale, 175 So. 2d 198, 200 (Fla. 1965). Allegations that constitute “nakedCASE NO.: CACE-14-001087
conclusions of law” are “not sufficient.” Coral Ridge Golf Course, Inc. v. Fort Lauderdale, 253
So. 2d 485, 487 (Fla. 4th DCA 1971).
Til, As to Counts 19 and 20—Misappropriation of Trade Secrets
13. Plaintiff can only plead causes of action for misappropriation of trade secrets if
traveling under Florida’s Uniform Trade Secrets Act, Fla. Stat. § 668.001 et seg. (“FUTSA”).
See Fla. Stat. § 688.008 (FUTSA “displace[s] conflicting tort, restitutory, and other law of this
state providing civil remedies for misappropriation of a trade secret.”); All Pro Sports Camp, Inc.
v. Walt Disney Co., 727 So. 2d 363, 367 (Fla. 5th DCA 1999) (“The misappropriation claim . . .
is statutory, and Florida’s Uniform Trade Secrets Act displaces tort law regarding trade secret
misappropriation.”).
14. Plaintiffs failure to do so, and its persistence in pleading apparent “common law”
causes of action for misappropriation, is unaccountable, in light of the clear statutory
displacement and after stipulating to do so.
15. Asa result, Plaintiff has failed to state even the elements of FUTSA’s statutory
definitions of “trade secrets” and “misappropriation” against iUniforms and Shellow—much less
ultimate facts that would support them.
A. Plaintiff Fails to Allege The Existence of “Trade Secrets” Under Florida Law
16. Plaintiff alleges that its “full list of all styles, sizes, and colors of items, as well as,
their sales and margin information were trade secret information and a proven business model.”
Second Am. Complt., at § 49. See also id. at § 201 & 206 (Plaintiff “has trade secrets in its proven
business model, method and technique of ordering inventory, pricing, and sales data.”).
17. Beyond these generalized descriptions, Plaintiff alleges no facts describing what
its alleged “trade secrets” are. Critically, Plaintiff does not allege, as it must under FUTSA, that
each of its alleged trade secrets are “not... generally known to,” or “not ... readily
5CASE NO.: CACE-14-001087
ascertainable by proper means by, other persons who can obtain economic value from its
disclosure or use,” and that each of the alleged trade secrets “derives independent economic
value” from not being so generally known or ascertainable. Fla. Stat. § 688.002(4)(a).
18. By failing to plead these statutory elements of “trade secret,” Plaintiff has failed
to allege the existence of a trade secret under Florida law. For this reason alone, Plaintiff's
Counts 19 and 20 for Misappropriation of Trade Secrets must be dismissed.
B. Plaintiff Fails to Allege Misappropriation by iUniforms or Shellow
19. Plaintiff alleges only the naked legal conclusions that iUniforms and Shellow
“knew or should have known the trade secrets were acquired by improper means” and that they
“misappropriated the trade secrets.” Second Am. Complt. at {J 204 & 209.
20. The Second Amended Complaint, however, states no ultimate facts that would
support iUniforms’ or Shellow’s knowledge. In fact, the only allegation of knowledge of any
kind, relevant to iUniforms and Shellow, is that Shellow knew “there was a previous uniform
vendor with FRANKLIN.” Second Am. Complt., at 4 59.i. Allegations of Shellow’s knowledge
in particular are so lacking, that Plaintiff takes pains to paint Shellow as a know-nothing “pawn”
of certain other defendants. /d. at 4 59.
21. Additionally, the Second Amended Complaint contains no factual allegations that
iUniforms or Shellow took did anything to “misappropriate.” To the contrary, Plaintiff alleges
the trade secrets were acquired, see Fla. Stat. § 688.002(2)(a) (defining “misappropriation” to
include “acquisition”), by Rogers and Sznitken—not iUniforms and Shellow. Second Am.
Complt. at J 202 & 207.
> Plaintiff pleads naked legal conclusions that track this language in its Counts against Rogers
and Sznitken—but it does not plead these elements, much less ultimate facts in support, against
iUniforms and Shellow.
6CASE NO.: CACE-14-001087
C, Failure to Allege Reasonable Efforts to Maintain Secrecy Under FUTSA.
22. Plaintiff fails to plead, as it must under FUTSA, and as ordered by this Court, that
its alleged trade secrets were “the subject of efforts that are reasonable under the circumstances
to maintain its secrecy.” Fla. Stat. § 688.002(4)(b).°
23. To the contrary, Plaintiffs alleged “trade secrets” could not be secret as a matter
of law, because by its own allegations, Plaintiff voluntarily disclosed them to an entity subject to
Florida’s Public Records Law without taking legally mandatory steps to exempt them.
A. All Information Plaintiff losed to Franklin Became Public Record
24. Under Plaintiff's own allegations, all trade secrets that iUniforms and Shellow
allegedly misappropriated were first disclosed by Plaintiff to Franklin—‘“a private charter school
located in Broward County, Florida.” 2d Am. Compt. at § 12.
25. As a private charter school in Florida, Franklin is subject to Florida’s Public
Records Law. See Fla. Stat. § 1002.33(16)(b)2 (“a charter school shall be in compliance
with .. . Chapter 119, relating to public records”).
26. Under the Public Records Law, public records are defined as “all documents,
papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing
software, or other material, regardless of the physical form, characteristics, or means of
transmission, made or received pursuant to law or ordinance or in connection with the
transaction of official business by any agency.” Fla. Stat. § 119.011(12) (emphasis added).
27. As a matter of law, Plaintiff's alleged “trade secrets” became “public records”
once Plaintiff disclosed them to Franklin, absent some affirmative effort to maintain their
confidentiality by having them timely declared protected trade secrets despite the voluntary
> Plaintiff pleads naked legal conclusions that track this language in its Counts against Rogers
and Sznitken—but it does not plead these elements, much less ultimate facts in support, against
iUniforms and Shellow.
7CASE NO.: CACE-14-001087
disclosure. Once these alleged “trade secrets” became “public records,” they became “public” by
definition: they may now be obtained by any person “desiring to do so.” See Fla. Stat.
§ 119.07(1)(a) (“Every person who has custody of a public record shall permit the record to be
inspected and copied by any person desiring to do so, at any reasonable time, under reasonable
conditions, and under supervision by the custodian of the public records.”).
28. From the Amended Complaint to the Second Amended Complaint, the only new
allegations regarding Plaintiff's alleged trade secrets, are that, when Plaintiff voluntarily handed
its “trade secrets” to a school subject to Florida’s public records law, Plaintiff “advised” Franklin
that the information “was to be kept confidential.” 2d Amen. Complt. at {§ 32 & 43.
29. As a matter of law, Plaintiff's allegations conclusively state an absence of any
trade secret protection. Under Florida law, “[t]he trade secret owner who fails to label a trade
secret as such, or otherwise to specify in writing upon delivery to a state agency that
information which it contends is confidential and exempt under the public records law is not to
be disclosed, has not taken measures or made efforts that are reasonable under the circumstances
to maintain the information’s secrecy.” Sepro Corp. v. Florida Dep't of Envtl. Prot., 839 So. 2d
781, 784 (Fla. 1st DCA 2003) (emphasis added).
30. In Sepro, the company named Sepro Corp. (“Sepro”) sued the Department of
Environmental Protection (“DEP”) to block the disclosure of alleged trade secrets, which Sepro
had furnished to DEP in connection with a contract between them. At an evidentiary hearing, a
DEP employee testified the alleged trade secrets were not marked confidential, but he was orally
“asked to use the information like the information that was ... marked confidential.” /d. at 783.
31. The appellate court affirmed the trial court’s denial of Sepro’s requested relief,
concluding “the failure to identify information furnished to a state agency as putatively
exempt from public disclosure effectively destroys any confidential character it might
8CASE NO.: CACE-14-001087
otherwise have enjoyed as a trade secret”—notwithstanding the DEP employee’s oral
representation. /d. at 783 (emphasis added). “As a practical-and therefore as a legal-matter, a
conversation with a state employee is not enough to prevent the information’s being made
available to anybody who makes a public records request.” /d. at 784. Cf: James, Hoyer,
Newcomer, Smiljanich, & Yanchunis, P.A. v. Rodale, Inc., 41 So. 3d 386, 387 (Fla. Ist DCA
2010) (protecting from disclosure documents furnished by Rodale to the Office of the Attorney
General where, “all of which Rodale marked confidential before furnishing to the AG.”); see
also Cubic Transp. Sys., Inc. v. Miami-Dade Cty., 899 So. 2d 453, 454 (Fla. 3d DCA 2005) (trial
court’s determination that company “failed adequately to protect an alleged trade secrets claim
from the effect of the Public Records Act by taking ‘efforts that are reasonable under the
circumstances to maintain its secrecy[,]’...is well supported by the evidence” where the
company “failed to mark the documents now in question as ‘confidential,’ and continued to
supply them, without asserting even a (legally ineffectual) post-delivery claim to confidentiality
for some thirty days after it had once attempted to do so by so informing County staff.”)
(emphasis added).
32. In the face of this Court’s order, requiring Plaintiff to plead reasonable efforts to
maintain secrecy (and in the face of Plaintiff's Stipulation to plead under FUTSA), Plaintiff's
subsequent failure to allege any more than the legally insufficient, vague statement that it
“advised” Franklin the records “were to be kept confidential,” demonstrates Plaintiff is unable to
plead a cause of action for misappropriation.
33. Moreover, Plaintiff's own allegations conclusively show that, as a matter of law,
its alleged trade secrets were not “the subject of efforts that are reasonable under the
circumstances to maintain [their] secrecy”’—a necessary element of “trade secret” under FUTSA.CASE NO.: CACE-14-001087
Fla. Stat. § 688.002(4)(b). Therefore, Plaintiff's Counts 19 and 20 for misappropriation of trade
secrets should be dismissed with prejudice.
IV. As to Counts 7 and 9—Tortious Interference with Contractual Relationship
34, Plaintiff claims that iUniforms and Shellow tortiously interfered with the
contractual relationship between Plaintiff and Franklin. “The elements of tortious interference
with a contract or business relationship are” as follows:
(1) the existence of a business relationship between the plaintiff and a third
person, not necessarily evidenced by an enforceable contract, under which the
plaintiff has legal rights; (2) the defendant’s knowledge of the relationship;
(3) an intentional and unjustified interference with the relationship by the
defendant which induces or otherwise causes the third person not to perform;
and (4) damage to the plaintiff resulting from the third person’s failure to
perform.
Seminole Tribe of Florida v. Times Pub. Co., 780 So. 2d 310, 315 (Fla. 4th DCA 2001). As set
forth below, Plaintiff fails to state a claim for tortious interference.
A, Plaintiff Fails to Allege the Existence of a Contract.
35. | The Second Amended Complaint appears to identify that the contract allegedly
interfered with was for servicing Franklin’s school uniform needs for the 2012-2013 school
year.*
36. However, assuming the truth of Plaintiff's allegations, Plaintiff fails to allege the
existence of any such contract. At most, Plaintiff alleges a mere agreement to agree, which is
unenforceable as a matter of law.
* Le. as shown in the relevant allegations excerpted below, a contract for the 2012-2013 school
season is the only season identified for which Plaintiff was allegedly promised a contract but for
which a contract was never actually entered into. However, Plaintiffs position remains
somewhat confusing. For in Plaintiff's Response (e-filed) 03/16/2016) to iUniforms’ and
Shellow’s previous Motions to Dismiss, Plaintiff stated “The contract that PLANET T alleges
was interfered with was the . .. agreement for the 2013-2014 school year.” The lack of clarity at
this stage in the litigation highlights Plaintiff's deficiency in fulfilling its obligations to state
causes of action, particularly in the face of the Court’s order that Plaintiff must allege more
particularly what contract was allegedly interfered with.
10CASE NO.: CACE-14-001087
37. Specifically, the Second Amended Complaint alleges:
e¢ “In March of 2011, Ms. [Ivy] Bernardo [Franklin’s assistant principal] confirmed that
FRANKLIN’s Board of Directors had approved PLANET T’s proposal to act as
exclusive uniform vendor for the 2011-2012 school year.” 2d Am. Complt. at ¥ 21
(emphasis added).
e “Although the Board of Directors of FRANKLIN and PLANET T had only agreed for
Planet T to provide uniform services for one (1) school year; Planet T wanted to
execute a written contract for a term to exceed one school year.” /d. at [22 (emphasis
added).
e “In April of 2011, PLANET T submitted a draft contract for execution by FRANKLIN
and PLANET T.” Jd. at § 23.
e In May 2011, “FRANKLIN refused to execute the contract submitted by PLANET T.”
Id. at 427. However, “ROGERS orally agreed that if PLANET T would be the
exclusive vendor of FRANKLIN and if performed as promised, a written contract
with an extended term would be immediately executed following the 2011-2012
season.” Jd. at | 28 (emphasis added).
e “In March of 2012, Ms. Bernardo contacted PLANET T and requested a meeting and for
PLANET T to again act as the exclusive uniform vendor to the 1,300 Franklin Academy
students for the 2012-2013 school year.” Jd. at § 35.
e “Ms. Bernardo committed to a meeting in September 2012 in order to secure a written
contract with PLANET T. However, no meeting ever occurred in September 2012.” /d.at
37 (emphasis added).
e “[Plaintiff Scott] SZNITKEN also advised that a meeting to “iron out” details of the
parties’ plans going forward would soon be arranged.” /d.at § 40 (emphasis added).
e “[OJn January 24, 2013, FRANKLIN advised PLANET T that the decision had been
made not to continue with PLANET T.” /d.at 4] 46.
e “FRANKLIN subsequently hired 1\UNIFORMS in place of PLANET T.” /d.at J 54
(emphasis added).
38. Thus, Plaintiff expressly alleges that (1) it was hired “only” to provide uniform
services for the 2011-2012 school year; (2) Franklin sought to have Plaintiff “again” act as its
uniform vendor; (3) the parties made efforts to “secure a written contract” and “‘iron out’
details”; (4) despite these efforts, no contract was ever made; and (5) “subsequently,” Franklin
hired iUniforms.CASE NO.: CACE-14-001087
39. By Plaintiffs own allegations, it never had a contract for the 2012-2013 school
year that could be interfered with. Plaintiff's only allegation regarding an agreement is that
Rogers allegedly “orally agreed that if PLANET T would be the exclusive vendor of
FRANKLIN and if performed as promised, a written contract with an extended term
would be immediately executed following the 2011-2012 season.” /d. at {28 (emphasis
added).
40. This allegation does not state the existence of a contract at all— there is no price,
nor duration, nor statement of any essential terms that could conceivably be cognized as the
pleading of a contract. Rubenstein v. Primedica Healthcare, Inc., 755 So. 2d 746, 748 (Fla. 4th
DCA 2000) (providing that “[iJn order to state a cause of action for breach of an oral contract, a
plaintiff is required to allege facts that, if taken as true, demonstrate that the parties mutually
assented to ‘a certain and definite proposition’ and left no essential terms open.”).
41. At most, Plaintiff alleges a so-called “agreement to agree,” which is
unenforceable as a matter of Florida law. Bergman v. Delulio, 826 So. 2d 500, 502 (Fla. 4th
DCA 2002). (“Florida law will not enforce ‘agreements to agree in the future”).
42. Because Plaintiff fails to allege the existence of a contract to be interfered with (or
at most alleges an unenforceable agreement to agree), iUniforms and Shellow could not have
interfered as a matter of law. Realauction.com, LLC v. Grant St. Grp., Inc., 82 So. 3d 1056, 1060
(Fla. 4th DCA 2011) (“[t]he law is clear that to sustain a tortious interference claim, ‘[t]here
must be a relationship in existence at the time of any alleged interference’”) (quoting Bernstein v.
True, 636 So. 2d 1364, 1366 (Fla. 4th DCA 1994)).
B. No Allegation of iUniforms’ or Shellows’ Knowledge
43. Under Florida law, “the defendant’s knowledge of the relationship” is an essential
element of a tortious interference claim. Seminole Tribe of Florida v. Times Pub. Co., 780 So. 2d
12CASE NO.: CACE-14-001087
310, 315 (Fla. 4th DCA 2001). Even assuming arguendo Plaintiff alleged the existence of a
contract, Plaintiff's Counts 7 and 9 must nevertheless be dismissed because Plaintiff fails to
allege iUniforms’ or Shellow’s knowledge of any contract or relationship between Plaintiff and
Franklin.
44. Plaintiff’s only allegation of knowledge, relevant to iUniforms or Shellow, is that
Shellow “admitted that he knew there was a previous uniform vendor with FRANKLIN.” 2d Am.
Compl.at § 59.i. This statement fails to allege that iUniforms or Shellow knew of (1) an existing
relationship (2) between Plaintiff and Franklin (3) at the time of the alleged interference. Rather,
it alleges only that Shellow knew that there (1) “was” (2) an unidentified “previous uniform
vendor with FRANKLIN” (3) at an unidentified point in time. These allegations are insufficient
as a matter of law. Realauction.com, LLC v. Grant St. Grp., Inc., 82 So. 3d 1056, 1060 (Fla. 4th
DCA 2011) (‘[t]he law is clear that to sustain a tortious interference claim, ‘[t]here must be a
relationship in existence at the time of any alleged interference’”) (quoting Bernstein v. True,
636 So.2d 1364, 1366 (Fla. 4th DCA 1994)); cf: Brumer v. HC Health Servs. of Fla., Inc., 662
So. 2d 1385, 1386 (Fla. 4th DCA) (complaint was appropriately dismissed, albeit with leave to
amend, where “[t]he complaint did not allege interference with a specific relationship.”).
45. By failing to allege iUniforms’ or Shellow’s knowledge of a specific relationship
between Plaintiff and Franklin that was in existence at the time of iUniforms’ alleged
interference, Plaintiff has failed to allege an essential element of it tortious interference claims.
Therefore, Counts 7 and 9 of the Second Amended Complaint should be dismissed.
C. No Allegations of iUniforms’ or Shellow’s Intent or Interference:
46. “[I]|ntentional and unjustified interference with the relationship” is an essential
element of a tortious interference claim. Seminole Tribe of Florida v. Times Pub. Co., 780 So.
2d 310, 315 (Fla. 4th DCA 2001). Even assuming arguendo Plaintiff alleged the existence of a
13CASE NO.: CACE-14-001087
contract, Plaintiff's Counts 7 and 9 must nevertheless be dismissed because the Second Amended.
Complaint is devoid of any factual allegations of iUniforms’ or Shellow’s intent or interference.
47. First, “Florida courts have held that the plaintiff must plead and prove that the
defendant manifested a specific intent to interfere with the business relationship.” Chicago
Title Ins. Co. v. Alday-Donaldson Title Co. of Fla., Inc., 832 So. 2d 810 (Fla. 2d DCA 2002)
(emphasis added). Here, Plaintiff makes no factual allegations of iUniforms’ or Shellow’s intent.
48. To the contrary, the Second Amended Complaint takes pains to paint Shellow as a
know-nothing “pawn” of others, and details at length what Shellow allegedly did not know and
did not do. See Am. Compl. § 59. Shellow’s testimony attached to the Second Amended
Complaint only demonstrates the absence of any “intentional and unjustified interference”:
Q Okay. Was it his [Jon Thomas Rogers] idea to start Uniforms?
A No.
Q Okay. Was it your idea to start iUniforms?
A Yes.
Q Okay. How did you learn about the business opportunity to get into the
uniform business with Franklin Academy?
A Through discussions with them.
Q Okay. So you had a mutual conversation about the uniform business with
Franklin Academy?
A Yes.
Q Okay. When did that conversation occur?
A Ican’t remember the exact date.
Q Was it before the incorporation of iUniforms or after?
A Yes, before the incorporation.
A I don’t remember who brought it up first. We talked about some of his
[Jon Thomas Rogers’] business challenges. Uniforms were a challenge and we
talked about what solutions there could be, and I don’t remember if I said, or if he
said why not produce it and do it ourselves.
2d Am. Compl. Ex. C., at 78:4-79:16; See also 2d Am. Compl. § 59.i. (alleging only that Shellow
“admitted that he knew there was a previous uniform vendor with FRANKLIN.”). BAC Funding
Consortium Inc. v. Jean—Jacques,Duke v. HSBC Mortg. Servs., LLC, 79 So. 3d 778, 780 (Fla.
14CASE NO.: CACE-14-001087
4th DCA 2011) (“When exhibits are attached to a complaint, the contents of the exhibits control
over the allegations of the complaint.”).
49. Thus, as to the essential element of intent, Plaintiff has alleged, at the very most,
that Shellow had knowledge, at an unidentified point in time, of an unidentified uniform vendor
with which Franklin was previously having issues. This is insufficient to allege the “intent”
element of tortious interference. The Fourth DCA, following the Restatement (Second) of Torts
for tortious interference, explained:
Making agreement with knowledge of the breach. One does not induce another
to commit a breach of contract with a third person ... when he merely enters
into an agreement with the other with knowledge that the other cannot
perform both it and his contract with the third person. (Compare
Comment m). For instance, B is under contract to sell certain goods to C. He
offers to sell them to A, who knows of the contract. A accepts the offer and
receives the goods. A has not induced the breach and is not subject to liability
under the rule stated in this Section.”
Martin Petroleum Corp. v. Amerada Hess Corp., 769 So. 2d 1105, 1107 (Fla. 4th DCA 2000).
Under these standards, Plaintiff's Counts 7 and 9 must be dismissed. Plaintiff alleges only in the
most conclusory fashion that iUniforms and Shellow “intentionally and unjustifiably interfered
with the business relationship.” 2d Am. Compl. {| 130 & 134. Missing from the Second
Amended Complaint, however, are any factual allegations of iUniforms’ or Shellow’s intent,
beyond Shellow’s mere knowledge of an unidentified prior relationship.
50. Moreover, as to the essential element of interference, Plaintiff has alleged, at
most, that Shellow “had a mutual conversation about the uniform business with Franklin
Academy” at an unidentified point in time prior to the incorporation of iUniforms; and that
Shellow talked with Jon Thomas Rogers at an unidentified point in time about challenges he was
having with a uniform provider and what solutions there could be. Shellow does not remember
who, said it, but someone said, “why not produce it and do it ourselves.”
15CASE NO.: CACE-14-001087
51. Missing from the Second Amended Complaint are any factual allegations that
iUnifroms or Shellow did anything that can constitute “interference” under Florida law. For
these reasons, Plaintiff's Counts 7 and 9 must be dismissed.
V. As to Counts 8 and 10—Tortious Interference with an Advantageous Business
Relationship
A, No Allegation of “Legal Rights” Other than Under Oral Contract
52. “[T]ortious interference with a contract and tortious interference with a business
relationship are basically the same cause of action. The only material difference appears to be
that in one there is a contract and in the other there is only a business relationship.” Smith v.
Ocean State Bank, 335 So. 2d 641, 642 (Fla. Ist DCA 1976).
53. In this case, the alleged contractual relationship between Plaintiff and Franklin,
and the alleged business relationship between Plaintiff and Franklin, are one and the same.
54, Under Florida law, where Plaintiff alleges interference with a business
relationship, Plaintiff must allege a business relationship under which it has “legal rights.”
Seminole Tribe of Florida v. Times Pub. Co., 780 So. 2d 310, 315 (Fla. 4th DCA 2001). The only
alleged source of Plaintiffs legal rights is its alleged oral contract. Indeed, Plaintiff alleges no
fact to support its “advantageous business relationship” claim that are different from those
alleged to support its “contractual relationship” claim. See 2d Am. Compl. at pp. 19 & 21 (re-
alleging and re-incorporating paragraphs 1-66 of the Amended Complaint in support of both
Counts 8 and 10). For this reason alone, Plaintiff's “advantageous business relationship” claim
should be dismissed as duplicative of the “interference with contract” claim.
55. Furthermore, because the counts are duplicative, the grounds argued above in
support of dismissing Plaintiff's “contractual relationship” claim apply with equal force to
Plaintiff's “advantageous business relationship” claim. For the same reasons argued above in
16CASE NO.: CACE-14-001087
support of dismissing Counts 7 and 9 for tortious interference with a contractual relationship, the
Court should also dismiss Plaintiff's Counts 8 and 10 for intentional interference with an
advantageous business relationship. The deficiencies in Plaintiffs allegations—the failure to
plead “legal rights,” knowledge, intent, or interference—are not cured merely because Plaintiff
calls it a “business relationship” instead.
B. No Allegation of an Understanding or Agreement that Would Haye Been
Completed
56. Plaintiff's “advantageous business relationship” claims fail for one additional
reason. The Fourth District Court of Appeal has explained that “[a] business relationship is
evidenced by ‘an actual and identifiable understanding or agreement which in all probability
would have been completed if the defendant had not interfered.’” Realauction.com, LLC v. Grant
St. Grp., Inc., 82 So. 3d 1056, 1058 (Fla. 4th DCA 2011). Plaintiff has failed to allege the
existence of such an “understanding or agreement.” In fact, Plaintiff alleges that it could not even
obtain a meeting to discuss securing a contract or to “‘iron out’ details.” Plaintiff further alleges
that when it did finally obtain a meeting, it was advised no contract would be made. 2d Am.
Compl. at § 46.
357. In fact, Plaintiffs own allegations make it clear that its “understanding or
agreement” with Franklin would not “have been completed,” regardless of any actions by
iUniforms or Shellow. Plaintiff alleges the following:
¢ FRANKLIN’s promises were nothing more than a mere subterfuge .. . .” Jd. at 4 50.
e ROGERS and SZNITKEN requested both confidential sales reports and a sample of all
types and sizes of uniforms that it sells to FRANKLIN’s students clearly to
misappropriate PLANET T’s confidential business information and trade secrets .. . and
not in anticipation of a meeting to sign a written contract with FRANKLIN.” /d. at 61.
e “[OJn January 24, 2013 ... FRANKLIN advised PLANET T that the decision had been
made not to continue with PLANET T.” Jd.at 46.
17CASE NO.: CACE-14-001087
58. In other words, Plaintiff alleges repeatedly throughout the Second Amended
Complaint that its “understanding or agreement” with Franklin would not have been completed,
regardless of any actions by iUniforms, because Franklin itself ended its arrangement with
Plaintiff. Therefore, Plaintiff has failed to allege a “business relationship”: that is, “‘an actual and
identifiable understanding or agreement which in all probability would have been completed if
the defendant had not interfered.’” Realauction.com, LLC v. Grant St. Grp., Inc., 82 So. 3d 1056,
1058 (Fla. 4th DCA 2011).
59. Because Plaintiff's own allegations expressly state its business relationship with
Franklin would not have continued, regardless of any actions by iUniforms, Plaintiff has failed to
allege the existence of a “business relationship” sufficient to state a claim for tortious
interference with an advantageous business relationship.
MI
Conclusion
After three years and multiple tries, Plaintiff has been unable to muster factual allegations
to support causes of action against defendants iUniforms, Inc. or Richard Shellow—who were
only brought into this case a year and a half after its commencement. At this point the Court can
only conclude Plaintiff is unable to do so, wherefore its causes of action against iUniforms and
Shellow should be dismissed, this time with prejudice.
WHEREFORE, defendants iUniforms and Shellow respectfully move this Court to
dismiss Counts 7-10, and 19-20 of Plaintiff's Second Amended Complaint with prejudice; to
award iUniforms and Shellow reasonable attorney’s fees incurred in defending against Counts 19
and 20 of the Second Amended Complaint, pursuant to Fla. Stat. § 688.005; and to award any
further relief that this Court deems just and proper.
Respectfully Submitted,
18CASE NO.: CACE-14-001087
GREENBERG TRAURIG, P.A.
Attorneys for Defendant iUniforms, Inc.
401 East Las Olas Boulevard
Suite 2000
Fort Lauderdale, Florida 33301
Telephone: (954) 765-0500
Telefax: (954) 765-1477
By: __ /s/Richard Rosengarten
KENNETH A. HORKY
Florida Bar Number 691194
HorkyK@gtlaw.com
muehlfeldern@gtlaw.com
FLService@gtlaw.com
RICHARD ROSENGARTEN
Florida Bar Number 0106169
RosengartenRich@gtlaw.com
rosr@gtlaw.com
FLService@gtlaw.comCASE NO.: CACE-14-001087
CERTIFICATE OF SERVICE
1 HEREBY CERTIFY that a true and correct copy of the foregoing was electronically
filed in this action on April 3, 2017, through the Florida Courts E-Filing Portal, and that the
Portal was used as a means to serve the e-filed document upon all counsel and parties on the e-
service list associated with this action.
By: __/s/Richard Rosengarten
RICHARD ROSENGARTEN
20EXHIBIT “A”Planet Uniforms, Inc. vs. Florida Charter Foundation, Inc., et al.
HEARING
1 IN THE SEVENTEENTH JUDICIAL CIRCUIT COURT
IN AND FOR BROWARD COUNTY, FLORIDA
2
CASE NO.: CACE-14-001087 (04)
3
4 PLANET T UNIFORMS, INC.,
5 Plaintiff,
6 -vs-
7 FLORIDA CHARTER FOUNDATION,
INC. d/b/a FRANKLIN ACADEMY
8 CHARTER SCHOOL, DISCOVERY
SCHOOLS, INC., IUNIFORMS,
9 INC., RICHARD SHELLOW, JON
THOMAS ROGERS, AND SCOTT
10 SZNITKEN,
11 Defendants.
Se a ra Ps eS /
12
13
14
15 TRANSCRIPT OF HEARING PROCEEDINGS BEFORE
THE HONORABLE JOHN B. BOWMAN
16
17
18
19
20 DATE TAKEN: Tuesday, February 7, 2017
21 TIME: 2:36 p.m. - 3:10 p.m.
22 LOCATION: Broward County Courthouse
201 Southeast 6th Street, Room 910A
23 Fort Lauderdale, Florida
24 REPORTED AND
TRANSCRIBED BY: Lee M. Walker, RPR
25
—_~
ORANGELEGAL Orange Legal
“— 800-275-7991Planet Uniforms, Inc. vs. Florida Charter Foundation, Inc., et al.
HEARING
di APPEARANCES
2
On Behalf of the Plaintiff:
3
DAVID DiPIETRO & ASSOCIATES
4 101 Northeast Third Avenue, Suite 1410
Fort Lauderdale, Florida 33301
5 (954) 712-3070
nicole@ddpalaw.com
6 BY: NICOLE MARTELL, ESQUIRE
ASHLEY T. STEFFEN, ESQUIRE
7
8
On Behalf of the Defendant, FLORIDA CHARTER,
9 DISCOVERY, ROGERS, and SZNITKEN:
10 FUERST ITTLEMAN DAVID & JOSEPH, PL
1001 Brickell Bay Drive, Suite 3112
11 Miami, Florida 33131
(305) 350-5690
12 cdavid@fuerstlaw.com
BY: CHRISTOPHER M. DAVID, ESQUIRE
13
14
On Behalf of the Defendant, IUNIFORMS and SHELLOW:
15
GREENBERG TRAURIG
16 401 East Las Olas Boulevard, Suite 2000
Fort Lauderdale, Florida 33301
17 (954) 768-8287
rosengartenrichégtlaw.com
18 BY: RICHARD B. ROSENGARTEN, ESQUIRE
19
20
21
22
23
24
25
ORANGELEGAL Orange Legal
NN 800-275-7991Planet Uniforms, Inc. vs. Florida Charter Foundation, Inc., et al.
HEARING
a BE IT REMEMBERED that the following proceedings
2 were had in the above-styled and numbered cause in the
3 Broward County Courthouse, City of Fort Lauderdale, in
4 the State of Florida, before the HONORABLE JOHN B.
5 BOWMAN, Judge of the above-named court:
6 MR. DAVID: Judge, we had set three different
7 defendants' motions. There's four -- six issues
8 that -- or three issues that are common to all
9 three, and two that are common to two of them. And
10 your JA called us today and said the 3:15 setting --
11 because we were trying to block up, trying to take
12 up some time -- wouldn't be heard today. But it
13 seems to me they're all -- they're tortious
14 interference with contract, tortious interference
15 with business relationship, misappropriation of
16 trade secrets, and adding to that, a fraudulent
17 misrepresentation claim. I think they could all be,
18 because they're all the same issues and makes sense
19 to us to argue them -- they're all brief.
20 THE COURT: We'll see what we get to here in
21 30 minutes. I will tell you, yes, you have double
22 slots. Our rules are very clear about that. You
23 can only book one case on the -- special set per
24 day. Normally, we just strike you and reach you
25 with the happy news when you get here, but as a
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ORANGELEGAL Orange Legal
NN 800-275-7991Planet Uniforms, Inc. vs. Florida Charter Foundation, Inc., et al.
HEARING
1 courtesy, we kept one for you.
2 MR. DAVID: Well, Your Honor, we appreciate
3 that. It was just, they're all the same. I was
4 trying to move the issues along.
5 THE COURT: The issues were on 15, 16, and 21.
6 It looked like they were pretty much the same.
7 MS. MARTELL: Right.
8 MR. DAVID: Are we ready to go, Judge?
9 THE COURT: We are. We are on defendant's
10 motion to dismiss. It looks like Discovery School's
11 motion. Go ahead and announce for the record,
12 please.
13 MR. DAVID: Your Honor, Christopher David on
14 behalf of Discovery Schools, Inc., Jon Thomas
15 Rogers, and Scott Sznitken. It's our motions today.
16 THE COURT: Okay.
17 MS. MARTELL: Nicole Martell with David
18 DiPietro's office on behalf of plaintiff, Planet T.
19 And we did file responses pertaining to all three of
20 the motions to dismiss that have been announced.
21 MS. STEFFEN: Ashley Steffen, also here for
22 Planet T Uniforms.
23 MR. ROSENGARTEN: Your Honor, I'm Richard
24 Rosengarten with Greenberg Traurig. I represent
25 defendant, IUniforms and Richard Shellow, whose
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ORANGELEGAL Orange Legal
NN 800-275-7991Planet Uniforms, Inc. vs. Florida Charter Foundation, Inc., et al.
HEARING
1 motions are not being heard today, but we are
2 co-defendants in the matter, so I am here to
3 observe.
4 THE COURT: Okay. Counsel?
5 MR. DAVID: All right. Your Honor, there are
6 three claims for tortious interference with
7 contractual relationship, and then three claims for
8 tortious interference with an advantageous business
9 relationship and misappropriation for trade secrets.
10 The issues are intertwined and relatively simple, I
11 think.
12 The tortious interference claims with
13 contractual relationship against all the defendants
14 don't state a cause of action nor could they,
15 because each of the defendants -- Mr. Rogers
16 Mr. Sznitken, and Discovery Schools -- are all
17 alleged to be agents of the principal, Florida
18 Charter.
19 It's clear law that an agent is not liable for
20 tortious interference with a contract of which his
21 or her principal is a party. That's their
22 allegations. We're agents. We're employees and
23 officers of Discovery Schools as a management
24 company. Mr. Rogers is an employee of Discovery and
25 Mr. Sznitken is an employee of Florida Charter. We
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ORANGELEGAL Orange Legal
NN 800-275-7991Planet Uniforms, Inc. vs. Florida Charter Foundation, Inc., et al.
HEARING
1 are acting within the scope and course of our
2 employment in negotiating with this vendor to
3 provide uniforms to our students.
4 We can't, as a matter of law, interfere with
5 that contract because we are effectively an agent
6 and a party to it. The plaintiff's response is
7 relatively tepid. It's more like, "Well, we've made
8 the allegations," but they're not. Their
9 allegations say, "We're an agent. It's just
10 black-letter law."
11 The next issue is is that this is an oral
12 agreement. Now, they've stated in their response
13 for the first time that there was three separate
14 oral agreements, I think, to get around the statute
15 of frauds. But the point of the matter is is that
16 an oral -- an unexecuted contract and an oral
17 agreement is terminable at will. And under the case
18 law that we cited, you can't have a tortious
19 interference claim even if we're not an agent with a
20 contract that's terminable at will because the
21 contract can be terminated at any time.
22 The other issue, Your Honor, is that there's no
23 allegation that any third-party was induced to do
24 anything. Because we're an agent, we can't induce
25 the principal. We are the same as the principal, so
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ORANGELEGAL Orange Legal
NN 800-275-7991Planet Uniforms, Inc. vs. Florida Charter Foundation, Inc., et al.
HEARING
1 we didn't induce a third-party to breach the
2 contract.
3 The next issue, Your Honor, as we cite in our
4 papers, is the agent can safeguard the principal's
5 interest. We terminated this vendor on an alleged
6 oral agreement because they weren't providing the
7 right kind of service for us, and we didn't want to
8 use them any longer. There is no identifiable
9 going-forward basis. So as to tortious interference
10 with contractual relationship, we think it doesn't
11 state a claim, and it ought to be dismissed.
12 The next issue is the tortious interference
13 with an advantageous relationship, which is the
14 companion claim. Most of the arguments I just made
15 are run as well, but there's a couple of additional
16 issues that need to be raised. One is that we don't
17 have a duty to Planet T. We don't have a duty to
18 stay out of that business. We have the contrary
19 duty to be involved in the conversation as agents.
20 So we are dealing with the business affairs of our
21 principal. You cannot state a claim for tortious
22 interference with an advantageous business
23 relationship because we are effectively parties to
24 it.
25 There is no identifiable interest that has been
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ORANGELEGAL Orange Legal
NN 800-275-7991Planet Uniforms, Inc. vs. Florida Charter Foundation, Inc., et al.
HEARING
1 alleged that was interfered with. A prospective
2 business relationship requires a business
3 relationship evidenced by an actual and identifiable
4 understanding or agreement, which, in all
5 probability, would have been completed if the
6 defendant had not interfered.
7 Obviously, we get into the issue of the agency
8 part, which is strike one. But strike two and three
9 is that this oral agreement is -- which was
10 terminable at will I can't interfere with because
11 I'm a party to it, et cetera, but it doesn't
12 identify. It doesn't set forth an identifiable
13 interest going forward if it can be terminable.
14 The oral agreement itself violates the statute
15 of frauds, because notwithstanding the issues that
16 were first raised in our responses where they now
17 claim it's three separate oral agreements for three
18 separate years, the defendant has testified or the
19 plaintiff has testified through their officers that
20 it was, in fact, one oral agreement for two years
21 with a two-year renewal term.
22 Statute of frauds requires that multiple -- an
23 agreement to go beyond two years -- go beyond one
24 year has to be in writing and signed by the parties
25 to be charged. This is clearly not such an
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ORANGELEGAL Orange Legal
NN 800-275-7991Planet Uniforms, Inc. vs. Florida Charter Foundation, Inc., et al.
HEARING
1 agreement.
2 And, Your Honor, if the agreement is three
3 one-year oral agreements, it's run its course
4 because the oral agreement -- the last alleged oral
5 agreement expired in March 2013, so there's nothing
6 to be interfered with.
7 They also seek to avoid the operation of the
8 statute of frauds by invoking Section 672.201 of the
9 Uniform Commercial Code where it says that there's
10 an oral -- an agreement for the price of goods of
11 $500 or more and that the goods are not suitable for
12 sale to others in the ordinary course of the
13 seller's business. And the seller, before notice of
14 repudiation is received and under circumstances
15 which reasonably indicate that the goods are for the
16 buyer, has made a substantial beginning of the
17 manufacture or commitments for the procurement.
18 This is effectively -- these are special --
19 they're alleging these are specialty goods. Your
20 Honor, these are school uniforms, which, if you
21 drove by any charter school or any public or private
22 school that requires their children to wear school
23 uniforms, these are polo shirts with the three
24 buttons or two buttons. They're the skorts.
25 They're the khaki pants. They are -- in fact, the
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ORANGELEGAL Orange Legal
NN 800-275-7991Planet Uniforms, Inc. vs. Florida Charter Foundation, Inc., et al.
HEARING 10
1 boxes in which they come in say "universal school
2 uniform."
3 The plaintiff's Web site has a number of
4 different schools that they serve. And when you
5 look on the Web site and you go through the various
6 schools, it's all the same stuff. And while that
7 may be a question of fact, what is not a question of
8 fact is that these goods are: One, not manufactured
9 for Florida Charter or for the defendants; and
10 number two, they weren't sold to us. They had an
11 oral agreement, according to them, that my client
12 said, "You can sell to our students. We don't buy
13 them. We never gave them a nickel. We have no
14 relationship with them on that commercial basis. So
15 you're not manufacturing anything for me. You're
16 manufacturing for sale to the parents and students
17 of this school," if you get past the uniform --
18 universal school uniform issue. So we don't think
19 they state a cause of action, and the UCC doesn't
20 save them.
21 That next dovetails into one of the more
22 problematic parts of this case is they go back, and
23 if the first -- there's counts against Mr. Sznitken
24 and Mr. Rogers for tortious -- or for fraudulent
25 misrepresentation. And the fraudulent
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ORANGELEGAL Orange Legal
NN 800-275-7991Planet Uniforms, Inc. vs. Florida Charter Foundation
Preview
Filing # 54581164 E-Filed 04/03/2017 08:03:20 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE-14-001087 PLANET T UNIFORMS, INC., Plaintiff, vs. 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. / DEFENDANTS IUNIFORMS INC. AND RICHARD SHELLOW’S MOTION TO DISMISS COUNTS 7-10 AND 19-20 OF THE SECOND AMENDED COMPLAINT Plaintiff filed a Second Amended Complaint that persists in all of the deficiencies that plagued its first two tries. Plaintiff was ordered to plead tortious interference and misappropriation of trade secrets with greater specificity, and Plaintiff stipulated to do so, Yet Plaintiff's Second Amended Complaint still fails to state the elements of those causes of action— or ultimate facts that would support them. This case has been pending for three years, and Plaintiff has been unable to muster factual allegations to support causes of action against defendants iUniforms, Inc. or Richard Shellow—who were only brought into this case a year and a half after its commencement. At this point the Court can only conclude Plaintiff is unable to do so, wherefore its causes of action against {Uniforms and Shellow should be dismissed, this time with prejudice. *4* FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 4/3/2017 8:03:20 PM.****CASE NO.: CACE-14-001087 L Introduction: Previous Motions to Dismiss and the Parties’ Stipulation 1. This case arises out of Plaintiff's failure to secure a contract to be the school uniform vendor for Defendant, Florida Charter Foundation, Inc. d/b/a Franklin Academy Charter School (“Franklin”). 2. After failing to secure the contract with Franklin, Plaintiff sued Franklin and others in January 2014, alleging various causes of action. A year and a half later, Plaintiff Amended its Complaint! to, among other things, plead causes of action against the movants here: iUniforms (the school uniform vendor currently doing business with Franklin) and Richard Shellow (iUniforms’ president). The Amended Complaint alleged three causes of action against iUniforms and Shellow: Tortious Interference with Contractual Relationship; Tortious Interference with Advantageous Business Relationship; and Misappropriation of Trade Secrets. 3. All of the defendants filed motions to dismiss (except Franklin, which answered the Amended Complaint). On February 7, 2017, the Court heard the Motions to Dismiss of defendants Discovery Schools, Jon Thomas Rogers, and Scott Sznitken, who also sought to dismiss counts for tortious interference and misappropriation of trade secrets. ({Uniforms’ and Shellow’s Motions were set for a later date). 4. The Court granted the motions to dismiss “for reasons stated on the record.” See Order granting motions to dismiss (Feb. 7, 2017). Those reasons were: THE COURT: The motion is granted; however, I agree with you, I think it’s all a matter of adding facts clarifying a few things. I’m not particularly clear what was interfered with. Fraud definitely needs additional facts in order to clear that up. Statute of frauds, that’s easy enough. I figured it was going to be something like an emblem on a shirt because they all do that. ' Plaintiff's Amended Complaint was deemed filed on August 10, 2015, pursuant to this Court’s Agreed Order on Plaintiffs Motion for Leave to Amend Complaint. 2CASE NO.: CACE-14-001087 I definitely don't see what steps were taken to protect the trade secrets at all, but, again, that can be alleged. Probably the vast majority is the affirmative defenses, but be that as it may, those are certainly necessary facts. See Transcript of February 7, 2017, hearing on Motions to Dismiss, at 28:18-29:5 (emphasis added), attached hereto as Exhibit “A.” 5. Plaintiff agreed to amend its Amended Complaint in certain respects. As to its counts for misappropriation of trade secrets, Plaintiff agreed to: Plead any cause of action for misappropriation of trade secrets under Florida’s Uniform Trade Secrets Act, rather than as a common-law cause of action. Consistent with the Court’s oral remarks at the close of the February 7, 2017, hearing, such pleading must include allegations of Planet T’s reasonable efforts to maintain the secrecy of its alleged trade secrets. Stipulation, at § 3.A. 6. As to Plaintiffs counts for tortious interference, Plaintiff agreed to plead with greater specificity: e “the nature and identity of the contract and/or relationship allegedly interfered with;” e “Plaintiffs legal rights in the alleged relationship and the actual and identifiable understanding or agreement which in all probability would have been completed had the defendant(s) not interfered;” and e iUniforms’ and Shellow’s knowledge of the relationship allegedly interfered with, intent to interfere, and acts of interference. Stipulation, at J 3.B.—1. 7. Thereafter Plaintiff filed its Second Amended Complaint, which continues to attempt to state causes of action against i1Uniforms and Shellow for misappropriation of trade secrets and tortious interference. 8. Yet despite Plaintiff's Stipulation, and contrary to Florida law, Plaintiff pled improper “common law” causes of action for misappropriation of trade secrets, rather than under Florida’s Uniform Trade Secrets Act.CASE NO.: CACE-14-001087 9. Moreover, the Second Amended Complaint contains no additional facts—and fails to state ultimate facts—sufficient to state causes of action against iUniforms and Shellow for misappropriation of trade secrets or tortious interference. Trade secrets are not alleged, the existence of an enforceable contract is not alleged, and there are no ultimate facts showing iUniforms or Shellow’s knowledge, intent, or actions constituting either misappropriation or tortious interference. 10. This is Plaintiffs third attempt overall to plead causes of action. The Court ordered Plaintiff to re-plead, and Plaintiff stipulated to re-plead, it’s causes of action with greater specificity as to misappropriation and tortious interference; but Plaintiff failed to do so. At this point, the Court can reach only one conclusion: Plaintiff is unable to state causes of action against iUniforms and Shellow. Accordingly, for the reasons more fully articulated below, Plaintiff's Second Amended Complaint against iUniforms and Shellow should be dismissed with prejudice. Il. Standard on Motion to Dismiss 11. “A motion to dismiss tests whether the plaintiff has stated a cause of action.” Bell v. Indian River Mem’ Hosp., 778 So. 2d 1030, 1032 (Fla. 4th DCA 2001). “When determining the merits of a motion to dismiss, the trial court’s consideration is limited to the four corners of the complaint, the allegations of which must be accepted as true and considered in the light most favorable to the nonmoving party.” Jd. 12. “In order to state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief.” Edwards v. Landsman, 51 So. 3d 1208, 1213 (Fla. 4th DCA 2011). Bare conclusions, unsupported by facts, “serve no useful purpose.” Ellison v. City of Fort Lauderdale, 175 So. 2d 198, 200 (Fla. 1965). Allegations that constitute “nakedCASE NO.: CACE-14-001087 conclusions of law” are “not sufficient.” Coral Ridge Golf Course, Inc. v. Fort Lauderdale, 253 So. 2d 485, 487 (Fla. 4th DCA 1971). Til, As to Counts 19 and 20—Misappropriation of Trade Secrets 13. Plaintiff can only plead causes of action for misappropriation of trade secrets if traveling under Florida’s Uniform Trade Secrets Act, Fla. Stat. § 668.001 et seg. (“FUTSA”). See Fla. Stat. § 688.008 (FUTSA “displace[s] conflicting tort, restitutory, and other law of this state providing civil remedies for misappropriation of a trade secret.”); All Pro Sports Camp, Inc. v. Walt Disney Co., 727 So. 2d 363, 367 (Fla. 5th DCA 1999) (“The misappropriation claim . . . is statutory, and Florida’s Uniform Trade Secrets Act displaces tort law regarding trade secret misappropriation.”). 14. Plaintiffs failure to do so, and its persistence in pleading apparent “common law” causes of action for misappropriation, is unaccountable, in light of the clear statutory displacement and after stipulating to do so. 15. Asa result, Plaintiff has failed to state even the elements of FUTSA’s statutory definitions of “trade secrets” and “misappropriation” against iUniforms and Shellow—much less ultimate facts that would support them. A. Plaintiff Fails to Allege The Existence of “Trade Secrets” Under Florida Law 16. Plaintiff alleges that its “full list of all styles, sizes, and colors of items, as well as, their sales and margin information were trade secret information and a proven business model.” Second Am. Complt., at § 49. See also id. at § 201 & 206 (Plaintiff “has trade secrets in its proven business model, method and technique of ordering inventory, pricing, and sales data.”). 17. Beyond these generalized descriptions, Plaintiff alleges no facts describing what its alleged “trade secrets” are. Critically, Plaintiff does not allege, as it must under FUTSA, that each of its alleged trade secrets are “not... generally known to,” or “not ... readily 5CASE NO.: CACE-14-001087 ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use,” and that each of the alleged trade secrets “derives independent economic value” from not being so generally known or ascertainable. Fla. Stat. § 688.002(4)(a). 18. By failing to plead these statutory elements of “trade secret,” Plaintiff has failed to allege the existence of a trade secret under Florida law. For this reason alone, Plaintiff's Counts 19 and 20 for Misappropriation of Trade Secrets must be dismissed. B. Plaintiff Fails to Allege Misappropriation by iUniforms or Shellow 19. Plaintiff alleges only the naked legal conclusions that iUniforms and Shellow “knew or should have known the trade secrets were acquired by improper means” and that they “misappropriated the trade secrets.” Second Am. Complt. at {J 204 & 209. 20. The Second Amended Complaint, however, states no ultimate facts that would support iUniforms’ or Shellow’s knowledge. In fact, the only allegation of knowledge of any kind, relevant to iUniforms and Shellow, is that Shellow knew “there was a previous uniform vendor with FRANKLIN.” Second Am. Complt., at 4 59.i. Allegations of Shellow’s knowledge in particular are so lacking, that Plaintiff takes pains to paint Shellow as a know-nothing “pawn” of certain other defendants. /d. at 4 59. 21. Additionally, the Second Amended Complaint contains no factual allegations that iUniforms or Shellow took did anything to “misappropriate.” To the contrary, Plaintiff alleges the trade secrets were acquired, see Fla. Stat. § 688.002(2)(a) (defining “misappropriation” to include “acquisition”), by Rogers and Sznitken—not iUniforms and Shellow. Second Am. Complt. at J 202 & 207. > Plaintiff pleads naked legal conclusions that track this language in its Counts against Rogers and Sznitken—but it does not plead these elements, much less ultimate facts in support, against iUniforms and Shellow. 6CASE NO.: CACE-14-001087 C, Failure to Allege Reasonable Efforts to Maintain Secrecy Under FUTSA. 22. Plaintiff fails to plead, as it must under FUTSA, and as ordered by this Court, that its alleged trade secrets were “the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” Fla. Stat. § 688.002(4)(b).° 23. To the contrary, Plaintiffs alleged “trade secrets” could not be secret as a matter of law, because by its own allegations, Plaintiff voluntarily disclosed them to an entity subject to Florida’s Public Records Law without taking legally mandatory steps to exempt them. A. All Information Plaintiff losed to Franklin Became Public Record 24. Under Plaintiff's own allegations, all trade secrets that iUniforms and Shellow allegedly misappropriated were first disclosed by Plaintiff to Franklin—‘“a private charter school located in Broward County, Florida.” 2d Am. Compt. at § 12. 25. As a private charter school in Florida, Franklin is subject to Florida’s Public Records Law. See Fla. Stat. § 1002.33(16)(b)2 (“a charter school shall be in compliance with .. . Chapter 119, relating to public records”). 26. Under the Public Records Law, public records are defined as “all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.” Fla. Stat. § 119.011(12) (emphasis added). 27. As a matter of law, Plaintiff's alleged “trade secrets” became “public records” once Plaintiff disclosed them to Franklin, absent some affirmative effort to maintain their confidentiality by having them timely declared protected trade secrets despite the voluntary > Plaintiff pleads naked legal conclusions that track this language in its Counts against Rogers and Sznitken—but it does not plead these elements, much less ultimate facts in support, against iUniforms and Shellow. 7CASE NO.: CACE-14-001087 disclosure. Once these alleged “trade secrets” became “public records,” they became “public” by definition: they may now be obtained by any person “desiring to do so.” See Fla. Stat. § 119.07(1)(a) (“Every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records.”). 28. From the Amended Complaint to the Second Amended Complaint, the only new allegations regarding Plaintiff's alleged trade secrets, are that, when Plaintiff voluntarily handed its “trade secrets” to a school subject to Florida’s public records law, Plaintiff “advised” Franklin that the information “was to be kept confidential.” 2d Amen. Complt. at {§ 32 & 43. 29. As a matter of law, Plaintiff's allegations conclusively state an absence of any trade secret protection. Under Florida law, “[t]he trade secret owner who fails to label a trade secret as such, or otherwise to specify in writing upon delivery to a state agency that information which it contends is confidential and exempt under the public records law is not to be disclosed, has not taken measures or made efforts that are reasonable under the circumstances to maintain the information’s secrecy.” Sepro Corp. v. Florida Dep't of Envtl. Prot., 839 So. 2d 781, 784 (Fla. 1st DCA 2003) (emphasis added). 30. In Sepro, the company named Sepro Corp. (“Sepro”) sued the Department of Environmental Protection (“DEP”) to block the disclosure of alleged trade secrets, which Sepro had furnished to DEP in connection with a contract between them. At an evidentiary hearing, a DEP employee testified the alleged trade secrets were not marked confidential, but he was orally “asked to use the information like the information that was ... marked confidential.” /d. at 783. 31. The appellate court affirmed the trial court’s denial of Sepro’s requested relief, concluding “the failure to identify information furnished to a state agency as putatively exempt from public disclosure effectively destroys any confidential character it might 8CASE NO.: CACE-14-001087 otherwise have enjoyed as a trade secret”—notwithstanding the DEP employee’s oral representation. /d. at 783 (emphasis added). “As a practical-and therefore as a legal-matter, a conversation with a state employee is not enough to prevent the information’s being made available to anybody who makes a public records request.” /d. at 784. Cf: James, Hoyer, Newcomer, Smiljanich, & Yanchunis, P.A. v. Rodale, Inc., 41 So. 3d 386, 387 (Fla. Ist DCA 2010) (protecting from disclosure documents furnished by Rodale to the Office of the Attorney General where, “all of which Rodale marked confidential before furnishing to the AG.”); see also Cubic Transp. Sys., Inc. v. Miami-Dade Cty., 899 So. 2d 453, 454 (Fla. 3d DCA 2005) (trial court’s determination that company “failed adequately to protect an alleged trade secrets claim from the effect of the Public Records Act by taking ‘efforts that are reasonable under the circumstances to maintain its secrecy[,]’...is well supported by the evidence” where the company “failed to mark the documents now in question as ‘confidential,’ and continued to supply them, without asserting even a (legally ineffectual) post-delivery claim to confidentiality for some thirty days after it had once attempted to do so by so informing County staff.”) (emphasis added). 32. In the face of this Court’s order, requiring Plaintiff to plead reasonable efforts to maintain secrecy (and in the face of Plaintiff's Stipulation to plead under FUTSA), Plaintiff's subsequent failure to allege any more than the legally insufficient, vague statement that it “advised” Franklin the records “were to be kept confidential,” demonstrates Plaintiff is unable to plead a cause of action for misappropriation. 33. Moreover, Plaintiff's own allegations conclusively show that, as a matter of law, its alleged trade secrets were not “the subject of efforts that are reasonable under the circumstances to maintain [their] secrecy”’—a necessary element of “trade secret” under FUTSA.CASE NO.: CACE-14-001087 Fla. Stat. § 688.002(4)(b). Therefore, Plaintiff's Counts 19 and 20 for misappropriation of trade secrets should be dismissed with prejudice. IV. As to Counts 7 and 9—Tortious Interference with Contractual Relationship 34, Plaintiff claims that iUniforms and Shellow tortiously interfered with the contractual relationship between Plaintiff and Franklin. “The elements of tortious interference with a contract or business relationship are” as follows: (1) the existence of a business relationship between the plaintiff and a third person, not necessarily evidenced by an enforceable contract, under which the plaintiff has legal rights; (2) the defendant’s knowledge of the relationship; (3) an intentional and unjustified interference with the relationship by the defendant which induces or otherwise causes the third person not to perform; and (4) damage to the plaintiff resulting from the third person’s failure to perform. Seminole Tribe of Florida v. Times Pub. Co., 780 So. 2d 310, 315 (Fla. 4th DCA 2001). As set forth below, Plaintiff fails to state a claim for tortious interference. A, Plaintiff Fails to Allege the Existence of a Contract. 35. | The Second Amended Complaint appears to identify that the contract allegedly interfered with was for servicing Franklin’s school uniform needs for the 2012-2013 school year.* 36. However, assuming the truth of Plaintiff's allegations, Plaintiff fails to allege the existence of any such contract. At most, Plaintiff alleges a mere agreement to agree, which is unenforceable as a matter of law. * Le. as shown in the relevant allegations excerpted below, a contract for the 2012-2013 school season is the only season identified for which Plaintiff was allegedly promised a contract but for which a contract was never actually entered into. However, Plaintiffs position remains somewhat confusing. For in Plaintiff's Response (e-filed) 03/16/2016) to iUniforms’ and Shellow’s previous Motions to Dismiss, Plaintiff stated “The contract that PLANET T alleges was interfered with was the . .. agreement for the 2013-2014 school year.” The lack of clarity at this stage in the litigation highlights Plaintiff's deficiency in fulfilling its obligations to state causes of action, particularly in the face of the Court’s order that Plaintiff must allege more particularly what contract was allegedly interfered with. 10CASE NO.: CACE-14-001087 37. Specifically, the Second Amended Complaint alleges: e¢ “In March of 2011, Ms. [Ivy] Bernardo [Franklin’s assistant principal] confirmed that FRANKLIN’s Board of Directors had approved PLANET T’s proposal to act as exclusive uniform vendor for the 2011-2012 school year.” 2d Am. Complt. at ¥ 21 (emphasis added). e “Although the Board of Directors of FRANKLIN and PLANET T had only agreed for Planet T to provide uniform services for one (1) school year; Planet T wanted to execute a written contract for a term to exceed one school year.” /d. at [22 (emphasis added). e “In April of 2011, PLANET T submitted a draft contract for execution by FRANKLIN and PLANET T.” Jd. at § 23. e In May 2011, “FRANKLIN refused to execute the contract submitted by PLANET T.” Id. at 427. However, “ROGERS orally agreed that if PLANET T would be the exclusive vendor of FRANKLIN and if performed as promised, a written contract with an extended term would be immediately executed following the 2011-2012 season.” Jd. at | 28 (emphasis added). e “In March of 2012, Ms. Bernardo contacted PLANET T and requested a meeting and for PLANET T to again act as the exclusive uniform vendor to the 1,300 Franklin Academy students for the 2012-2013 school year.” Jd. at § 35. e “Ms. Bernardo committed to a meeting in September 2012 in order to secure a written contract with PLANET T. However, no meeting ever occurred in September 2012.” /d.at 37 (emphasis added). e “[Plaintiff Scott] SZNITKEN also advised that a meeting to “iron out” details of the parties’ plans going forward would soon be arranged.” /d.at § 40 (emphasis added). e “[OJn January 24, 2013, FRANKLIN advised PLANET T that the decision had been made not to continue with PLANET T.” /d.at 4] 46. e “FRANKLIN subsequently hired 1\UNIFORMS in place of PLANET T.” /d.at J 54 (emphasis added). 38. Thus, Plaintiff expressly alleges that (1) it was hired “only” to provide uniform services for the 2011-2012 school year; (2) Franklin sought to have Plaintiff “again” act as its uniform vendor; (3) the parties made efforts to “secure a written contract” and “‘iron out’ details”; (4) despite these efforts, no contract was ever made; and (5) “subsequently,” Franklin hired iUniforms.CASE NO.: CACE-14-001087 39. By Plaintiffs own allegations, it never had a contract for the 2012-2013 school year that could be interfered with. Plaintiff's only allegation regarding an agreement is that Rogers allegedly “orally agreed that if PLANET T would be the exclusive vendor of FRANKLIN and if performed as promised, a written contract with an extended term would be immediately executed following the 2011-2012 season.” /d. at {28 (emphasis added). 40. This allegation does not state the existence of a contract at all— there is no price, nor duration, nor statement of any essential terms that could conceivably be cognized as the pleading of a contract. Rubenstein v. Primedica Healthcare, Inc., 755 So. 2d 746, 748 (Fla. 4th DCA 2000) (providing that “[iJn order to state a cause of action for breach of an oral contract, a plaintiff is required to allege facts that, if taken as true, demonstrate that the parties mutually assented to ‘a certain and definite proposition’ and left no essential terms open.”). 41. At most, Plaintiff alleges a so-called “agreement to agree,” which is unenforceable as a matter of Florida law. Bergman v. Delulio, 826 So. 2d 500, 502 (Fla. 4th DCA 2002). (“Florida law will not enforce ‘agreements to agree in the future”). 42. Because Plaintiff fails to allege the existence of a contract to be interfered with (or at most alleges an unenforceable agreement to agree), iUniforms and Shellow could not have interfered as a matter of law. Realauction.com, LLC v. Grant St. Grp., Inc., 82 So. 3d 1056, 1060 (Fla. 4th DCA 2011) (“[t]he law is clear that to sustain a tortious interference claim, ‘[t]here must be a relationship in existence at the time of any alleged interference’”) (quoting Bernstein v. True, 636 So. 2d 1364, 1366 (Fla. 4th DCA 1994)). B. No Allegation of iUniforms’ or Shellows’ Knowledge 43. Under Florida law, “the defendant’s knowledge of the relationship” is an essential element of a tortious interference claim. Seminole Tribe of Florida v. Times Pub. Co., 780 So. 2d 12CASE NO.: CACE-14-001087 310, 315 (Fla. 4th DCA 2001). Even assuming arguendo Plaintiff alleged the existence of a contract, Plaintiff's Counts 7 and 9 must nevertheless be dismissed because Plaintiff fails to allege iUniforms’ or Shellow’s knowledge of any contract or relationship between Plaintiff and Franklin. 44. Plaintiff’s only allegation of knowledge, relevant to iUniforms or Shellow, is that Shellow “admitted that he knew there was a previous uniform vendor with FRANKLIN.” 2d Am. Compl.at § 59.i. This statement fails to allege that iUniforms or Shellow knew of (1) an existing relationship (2) between Plaintiff and Franklin (3) at the time of the alleged interference. Rather, it alleges only that Shellow knew that there (1) “was” (2) an unidentified “previous uniform vendor with FRANKLIN” (3) at an unidentified point in time. These allegations are insufficient as a matter of law. Realauction.com, LLC v. Grant St. Grp., Inc., 82 So. 3d 1056, 1060 (Fla. 4th DCA 2011) (‘[t]he law is clear that to sustain a tortious interference claim, ‘[t]here must be a relationship in existence at the time of any alleged interference’”) (quoting Bernstein v. True, 636 So.2d 1364, 1366 (Fla. 4th DCA 1994)); cf: Brumer v. HC Health Servs. of Fla., Inc., 662 So. 2d 1385, 1386 (Fla. 4th DCA) (complaint was appropriately dismissed, albeit with leave to amend, where “[t]he complaint did not allege interference with a specific relationship.”). 45. By failing to allege iUniforms’ or Shellow’s knowledge of a specific relationship between Plaintiff and Franklin that was in existence at the time of iUniforms’ alleged interference, Plaintiff has failed to allege an essential element of it tortious interference claims. Therefore, Counts 7 and 9 of the Second Amended Complaint should be dismissed. C. No Allegations of iUniforms’ or Shellow’s Intent or Interference: 46. “[I]|ntentional and unjustified interference with the relationship” is an essential element of a tortious interference claim. Seminole Tribe of Florida v. Times Pub. Co., 780 So. 2d 310, 315 (Fla. 4th DCA 2001). Even assuming arguendo Plaintiff alleged the existence of a 13CASE NO.: CACE-14-001087 contract, Plaintiff's Counts 7 and 9 must nevertheless be dismissed because the Second Amended. Complaint is devoid of any factual allegations of iUniforms’ or Shellow’s intent or interference. 47. First, “Florida courts have held that the plaintiff must plead and prove that the defendant manifested a specific intent to interfere with the business relationship.” Chicago Title Ins. Co. v. Alday-Donaldson Title Co. of Fla., Inc., 832 So. 2d 810 (Fla. 2d DCA 2002) (emphasis added). Here, Plaintiff makes no factual allegations of iUniforms’ or Shellow’s intent. 48. To the contrary, the Second Amended Complaint takes pains to paint Shellow as a know-nothing “pawn” of others, and details at length what Shellow allegedly did not know and did not do. See Am. Compl. § 59. Shellow’s testimony attached to the Second Amended Complaint only demonstrates the absence of any “intentional and unjustified interference”: Q Okay. Was it his [Jon Thomas Rogers] idea to start Uniforms? A No. Q Okay. Was it your idea to start iUniforms? A Yes. Q Okay. How did you learn about the business opportunity to get into the uniform business with Franklin Academy? A Through discussions with them. Q Okay. So you had a mutual conversation about the uniform business with Franklin Academy? A Yes. Q Okay. When did that conversation occur? A Ican’t remember the exact date. Q Was it before the incorporation of iUniforms or after? A Yes, before the incorporation. A I don’t remember who brought it up first. We talked about some of his [Jon Thomas Rogers’] business challenges. Uniforms were a challenge and we talked about what solutions there could be, and I don’t remember if I said, or if he said why not produce it and do it ourselves. 2d Am. Compl. Ex. C., at 78:4-79:16; See also 2d Am. Compl. § 59.i. (alleging only that Shellow “admitted that he knew there was a previous uniform vendor with FRANKLIN.”). BAC Funding Consortium Inc. v. Jean—Jacques,Duke v. HSBC Mortg. Servs., LLC, 79 So. 3d 778, 780 (Fla. 14CASE NO.: CACE-14-001087 4th DCA 2011) (“When exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint.”). 49. Thus, as to the essential element of intent, Plaintiff has alleged, at the very most, that Shellow had knowledge, at an unidentified point in time, of an unidentified uniform vendor with which Franklin was previously having issues. This is insufficient to allege the “intent” element of tortious interference. The Fourth DCA, following the Restatement (Second) of Torts for tortious interference, explained: Making agreement with knowledge of the breach. One does not induce another to commit a breach of contract with a third person ... when he merely enters into an agreement with the other with knowledge that the other cannot perform both it and his contract with the third person. (Compare Comment m). For instance, B is under contract to sell certain goods to C. He offers to sell them to A, who knows of the contract. A accepts the offer and receives the goods. A has not induced the breach and is not subject to liability under the rule stated in this Section.” Martin Petroleum Corp. v. Amerada Hess Corp., 769 So. 2d 1105, 1107 (Fla. 4th DCA 2000). Under these standards, Plaintiff's Counts 7 and 9 must be dismissed. Plaintiff alleges only in the most conclusory fashion that iUniforms and Shellow “intentionally and unjustifiably interfered with the business relationship.” 2d Am. Compl. {| 130 & 134. Missing from the Second Amended Complaint, however, are any factual allegations of iUniforms’ or Shellow’s intent, beyond Shellow’s mere knowledge of an unidentified prior relationship. 50. Moreover, as to the essential element of interference, Plaintiff has alleged, at most, that Shellow “had a mutual conversation about the uniform business with Franklin Academy” at an unidentified point in time prior to the incorporation of iUniforms; and that Shellow talked with Jon Thomas Rogers at an unidentified point in time about challenges he was having with a uniform provider and what solutions there could be. Shellow does not remember who, said it, but someone said, “why not produce it and do it ourselves.” 15CASE NO.: CACE-14-001087 51. Missing from the Second Amended Complaint are any factual allegations that iUnifroms or Shellow did anything that can constitute “interference” under Florida law. For these reasons, Plaintiff's Counts 7 and 9 must be dismissed. V. As to Counts 8 and 10—Tortious Interference with an Advantageous Business Relationship A, No Allegation of “Legal Rights” Other than Under Oral Contract 52. “[T]ortious interference with a contract and tortious interference with a business relationship are basically the same cause of action. The only material difference appears to be that in one there is a contract and in the other there is only a business relationship.” Smith v. Ocean State Bank, 335 So. 2d 641, 642 (Fla. Ist DCA 1976). 53. In this case, the alleged contractual relationship between Plaintiff and Franklin, and the alleged business relationship between Plaintiff and Franklin, are one and the same. 54, Under Florida law, where Plaintiff alleges interference with a business relationship, Plaintiff must allege a business relationship under which it has “legal rights.” Seminole Tribe of Florida v. Times Pub. Co., 780 So. 2d 310, 315 (Fla. 4th DCA 2001). The only alleged source of Plaintiffs legal rights is its alleged oral contract. Indeed, Plaintiff alleges no fact to support its “advantageous business relationship” claim that are different from those alleged to support its “contractual relationship” claim. See 2d Am. Compl. at pp. 19 & 21 (re- alleging and re-incorporating paragraphs 1-66 of the Amended Complaint in support of both Counts 8 and 10). For this reason alone, Plaintiff's “advantageous business relationship” claim should be dismissed as duplicative of the “interference with contract” claim. 55. Furthermore, because the counts are duplicative, the grounds argued above in support of dismissing Plaintiff's “contractual relationship” claim apply with equal force to Plaintiff's “advantageous business relationship” claim. For the same reasons argued above in 16CASE NO.: CACE-14-001087 support of dismissing Counts 7 and 9 for tortious interference with a contractual relationship, the Court should also dismiss Plaintiff's Counts 8 and 10 for intentional interference with an advantageous business relationship. The deficiencies in Plaintiffs allegations—the failure to plead “legal rights,” knowledge, intent, or interference—are not cured merely because Plaintiff calls it a “business relationship” instead. B. No Allegation of an Understanding or Agreement that Would Haye Been Completed 56. Plaintiff's “advantageous business relationship” claims fail for one additional reason. The Fourth District Court of Appeal has explained that “[a] business relationship is evidenced by ‘an actual and identifiable understanding or agreement which in all probability would have been completed if the defendant had not interfered.’” Realauction.com, LLC v. Grant St. Grp., Inc., 82 So. 3d 1056, 1058 (Fla. 4th DCA 2011). Plaintiff has failed to allege the existence of such an “understanding or agreement.” In fact, Plaintiff alleges that it could not even obtain a meeting to discuss securing a contract or to “‘iron out’ details.” Plaintiff further alleges that when it did finally obtain a meeting, it was advised no contract would be made. 2d Am. Compl. at § 46. 357. In fact, Plaintiffs own allegations make it clear that its “understanding or agreement” with Franklin would not “have been completed,” regardless of any actions by iUniforms or Shellow. Plaintiff alleges the following: ¢ FRANKLIN’s promises were nothing more than a mere subterfuge .. . .” Jd. at 4 50. e ROGERS and SZNITKEN requested both confidential sales reports and a sample of all types and sizes of uniforms that it sells to FRANKLIN’s students clearly to misappropriate PLANET T’s confidential business information and trade secrets .. . and not in anticipation of a meeting to sign a written contract with FRANKLIN.” /d. at 61. e “[OJn January 24, 2013 ... FRANKLIN advised PLANET T that the decision had been made not to continue with PLANET T.” Jd.at 46. 17CASE NO.: CACE-14-001087 58. In other words, Plaintiff alleges repeatedly throughout the Second Amended Complaint that its “understanding or agreement” with Franklin would not have been completed, regardless of any actions by iUniforms, because Franklin itself ended its arrangement with Plaintiff. Therefore, Plaintiff has failed to allege a “business relationship”: that is, “‘an actual and identifiable understanding or agreement which in all probability would have been completed if the defendant had not interfered.’” Realauction.com, LLC v. Grant St. Grp., Inc., 82 So. 3d 1056, 1058 (Fla. 4th DCA 2011). 59. Because Plaintiff's own allegations expressly state its business relationship with Franklin would not have continued, regardless of any actions by iUniforms, Plaintiff has failed to allege the existence of a “business relationship” sufficient to state a claim for tortious interference with an advantageous business relationship. MI Conclusion After three years and multiple tries, Plaintiff has been unable to muster factual allegations to support causes of action against defendants iUniforms, Inc. or Richard Shellow—who were only brought into this case a year and a half after its commencement. At this point the Court can only conclude Plaintiff is unable to do so, wherefore its causes of action against iUniforms and Shellow should be dismissed, this time with prejudice. WHEREFORE, defendants iUniforms and Shellow respectfully move this Court to dismiss Counts 7-10, and 19-20 of Plaintiff's Second Amended Complaint with prejudice; to award iUniforms and Shellow reasonable attorney’s fees incurred in defending against Counts 19 and 20 of the Second Amended Complaint, pursuant to Fla. Stat. § 688.005; and to award any further relief that this Court deems just and proper. Respectfully Submitted, 18CASE NO.: CACE-14-001087 GREENBERG TRAURIG, P.A. Attorneys for Defendant iUniforms, Inc. 401 East Las Olas Boulevard Suite 2000 Fort Lauderdale, Florida 33301 Telephone: (954) 765-0500 Telefax: (954) 765-1477 By: __ /s/Richard Rosengarten KENNETH A. HORKY Florida Bar Number 691194 HorkyK@gtlaw.com muehlfeldern@gtlaw.com FLService@gtlaw.com RICHARD ROSENGARTEN Florida Bar Number 0106169 RosengartenRich@gtlaw.com rosr@gtlaw.com FLService@gtlaw.comCASE NO.: CACE-14-001087 CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the foregoing was electronically filed in this action on April 3, 2017, through the Florida Courts E-Filing Portal, and that the Portal was used as a means to serve the e-filed document upon all counsel and parties on the e- service list associated with this action. By: __/s/Richard Rosengarten RICHARD ROSENGARTEN 20EXHIBIT “A”Planet Uniforms, Inc. vs. Florida Charter Foundation, Inc., et al. HEARING 1 IN THE SEVENTEENTH JUDICIAL CIRCUIT COURT IN AND FOR BROWARD COUNTY, FLORIDA 2 CASE NO.: CACE-14-001087 (04) 3 4 PLANET T UNIFORMS, INC., 5 Plaintiff, 6 -vs- 7 FLORIDA CHARTER FOUNDATION, INC. d/b/a FRANKLIN ACADEMY 8 CHARTER SCHOOL, DISCOVERY SCHOOLS, INC., IUNIFORMS, 9 INC., RICHARD SHELLOW, JON THOMAS ROGERS, AND SCOTT 10 SZNITKEN, 11 Defendants. Se a ra Ps eS / 12 13 14 15 TRANSCRIPT OF HEARING PROCEEDINGS BEFORE THE HONORABLE JOHN B. BOWMAN 16 17 18 19 20 DATE TAKEN: Tuesday, February 7, 2017 21 TIME: 2:36 p.m. - 3:10 p.m. 22 LOCATION: Broward County Courthouse 201 Southeast 6th Street, Room 910A 23 Fort Lauderdale, Florida 24 REPORTED AND TRANSCRIBED BY: Lee M. Walker, RPR 25 —_~ ORANGELEGAL Orange Legal “— 800-275-7991Planet Uniforms, Inc. vs. Florida Charter Foundation, Inc., et al. HEARING di APPEARANCES 2 On Behalf of the Plaintiff: 3 DAVID DiPIETRO & ASSOCIATES 4 101 Northeast Third Avenue, Suite 1410 Fort Lauderdale, Florida 33301 5 (954) 712-3070 nicole@ddpalaw.com 6 BY: NICOLE MARTELL, ESQUIRE ASHLEY T. STEFFEN, ESQUIRE 7 8 On Behalf of the Defendant, FLORIDA CHARTER, 9 DISCOVERY, ROGERS, and SZNITKEN: 10 FUERST ITTLEMAN DAVID & JOSEPH, PL 1001 Brickell Bay Drive, Suite 3112 11 Miami, Florida 33131 (305) 350-5690 12 cdavid@fuerstlaw.com BY: CHRISTOPHER M. DAVID, ESQUIRE 13 14 On Behalf of the Defendant, IUNIFORMS and SHELLOW: 15 GREENBERG TRAURIG 16 401 East Las Olas Boulevard, Suite 2000 Fort Lauderdale, Florida 33301 17 (954) 768-8287 rosengartenrichégtlaw.com 18 BY: RICHARD B. ROSENGARTEN, ESQUIRE 19 20 21 22 23 24 25 ORANGELEGAL Orange Legal NN 800-275-7991Planet Uniforms, Inc. vs. Florida Charter Foundation, Inc., et al. HEARING a BE IT REMEMBERED that the following proceedings 2 were had in the above-styled and numbered cause in the 3 Broward County Courthouse, City of Fort Lauderdale, in 4 the State of Florida, before the HONORABLE JOHN B. 5 BOWMAN, Judge of the above-named court: 6 MR. DAVID: Judge, we had set three different 7 defendants' motions. There's four -- six issues 8 that -- or three issues that are common to all 9 three, and two that are common to two of them. And 10 your JA called us today and said the 3:15 setting -- 11 because we were trying to block up, trying to take 12 up some time -- wouldn't be heard today. But it 13 seems to me they're all -- they're tortious 14 interference with contract, tortious interference 15 with business relationship, misappropriation of 16 trade secrets, and adding to that, a fraudulent 17 misrepresentation claim. I think they could all be, 18 because they're all the same issues and makes sense 19 to us to argue them -- they're all brief. 20 THE COURT: We'll see what we get to here in 21 30 minutes. I will tell you, yes, you have double 22 slots. Our rules are very clear about that. You 23 can only book one case on the -- special set per 24 day. Normally, we just strike you and reach you 25 with the happy news when you get here, but as a ——~\ ORANGELEGAL Orange Legal NN 800-275-7991Planet Uniforms, Inc. vs. Florida Charter Foundation, Inc., et al. HEARING 1 courtesy, we kept one for you. 2 MR. DAVID: Well, Your Honor, we appreciate 3 that. It was just, they're all the same. I was 4 trying to move the issues along. 5 THE COURT: The issues were on 15, 16, and 21. 6 It looked like they were pretty much the same. 7 MS. MARTELL: Right. 8 MR. DAVID: Are we ready to go, Judge? 9 THE COURT: We are. We are on defendant's 10 motion to dismiss. It looks like Discovery School's 11 motion. Go ahead and announce for the record, 12 please. 13 MR. DAVID: Your Honor, Christopher David on 14 behalf of Discovery Schools, Inc., Jon Thomas 15 Rogers, and Scott Sznitken. It's our motions today. 16 THE COURT: Okay. 17 MS. MARTELL: Nicole Martell with David 18 DiPietro's office on behalf of plaintiff, Planet T. 19 And we did file responses pertaining to all three of 20 the motions to dismiss that have been announced. 21 MS. STEFFEN: Ashley Steffen, also here for 22 Planet T Uniforms. 23 MR. ROSENGARTEN: Your Honor, I'm Richard 24 Rosengarten with Greenberg Traurig. I represent 25 defendant, IUniforms and Richard Shellow, whose ——~\ ORANGELEGAL Orange Legal NN 800-275-7991Planet Uniforms, Inc. vs. Florida Charter Foundation, Inc., et al. HEARING 1 motions are not being heard today, but we are 2 co-defendants in the matter, so I am here to 3 observe. 4 THE COURT: Okay. Counsel? 5 MR. DAVID: All right. Your Honor, there are 6 three claims for tortious interference with 7 contractual relationship, and then three claims for 8 tortious interference with an advantageous business 9 relationship and misappropriation for trade secrets. 10 The issues are intertwined and relatively simple, I 11 think. 12 The tortious interference claims with 13 contractual relationship against all the defendants 14 don't state a cause of action nor could they, 15 because each of the defendants -- Mr. Rogers 16 Mr. Sznitken, and Discovery Schools -- are all 17 alleged to be agents of the principal, Florida 18 Charter. 19 It's clear law that an agent is not liable for 20 tortious interference with a contract of which his 21 or her principal is a party. That's their 22 allegations. We're agents. We're employees and 23 officers of Discovery Schools as a management 24 company. Mr. Rogers is an employee of Discovery and 25 Mr. Sznitken is an employee of Florida Charter. We ——~\ ORANGELEGAL Orange Legal NN 800-275-7991Planet Uniforms, Inc. vs. Florida Charter Foundation, Inc., et al. HEARING 1 are acting within the scope and course of our 2 employment in negotiating with this vendor to 3 provide uniforms to our students. 4 We can't, as a matter of law, interfere with 5 that contract because we are effectively an agent 6 and a party to it. The plaintiff's response is 7 relatively tepid. It's more like, "Well, we've made 8 the allegations," but they're not. Their 9 allegations say, "We're an agent. It's just 10 black-letter law." 11 The next issue is is that this is an oral 12 agreement. Now, they've stated in their response 13 for the first time that there was three separate 14 oral agreements, I think, to get around the statute 15 of frauds. But the point of the matter is is that 16 an oral -- an unexecuted contract and an oral 17 agreement is terminable at will. And under the case 18 law that we cited, you can't have a tortious 19 interference claim even if we're not an agent with a 20 contract that's terminable at will because the 21 contract can be terminated at any time. 22 The other issue, Your Honor, is that there's no 23 allegation that any third-party was induced to do 24 anything. Because we're an agent, we can't induce 25 the principal. We are the same as the principal, so ——~\ ORANGELEGAL Orange Legal NN 800-275-7991Planet Uniforms, Inc. vs. Florida Charter Foundation, Inc., et al. HEARING 1 we didn't induce a third-party to breach the 2 contract. 3 The next issue, Your Honor, as we cite in our 4 papers, is the agent can safeguard the principal's 5 interest. We terminated this vendor on an alleged 6 oral agreement because they weren't providing the 7 right kind of service for us, and we didn't want to 8 use them any longer. There is no identifiable 9 going-forward basis. So as to tortious interference 10 with contractual relationship, we think it doesn't 11 state a claim, and it ought to be dismissed. 12 The next issue is the tortious interference 13 with an advantageous relationship, which is the 14 companion claim. Most of the arguments I just made 15 are run as well, but there's a couple of additional 16 issues that need to be raised. One is that we don't 17 have a duty to Planet T. We don't have a duty to 18 stay out of that business. We have the contrary 19 duty to be involved in the conversation as agents. 20 So we are dealing with the business affairs of our 21 principal. You cannot state a claim for tortious 22 interference with an advantageous business 23 relationship because we are effectively parties to 24 it. 25 There is no identifiable interest that has been ——~\ ORANGELEGAL Orange Legal NN 800-275-7991Planet Uniforms, Inc. vs. Florida Charter Foundation, Inc., et al. HEARING 1 alleged that was interfered with. A prospective 2 business relationship requires a business 3 relationship evidenced by an actual and identifiable 4 understanding or agreement, which, in all 5 probability, would have been completed if the 6 defendant had not interfered. 7 Obviously, we get into the issue of the agency 8 part, which is strike one. But strike two and three 9 is that this oral agreement is -- which was 10 terminable at will I can't interfere with because 11 I'm a party to it, et cetera, but it doesn't 12 identify. It doesn't set forth an identifiable 13 interest going forward if it can be terminable. 14 The oral agreement itself violates the statute 15 of frauds, because notwithstanding the issues that 16 were first raised in our responses where they now 17 claim it's three separate oral agreements for three 18 separate years, the defendant has testified or the 19 plaintiff has testified through their officers that 20 it was, in fact, one oral agreement for two years 21 with a two-year renewal term. 22 Statute of frauds requires that multiple -- an 23 agreement to go beyond two years -- go beyond one 24 year has to be in writing and signed by the parties 25 to be charged. This is clearly not such an ——~\ ORANGELEGAL Orange Legal NN 800-275-7991Planet Uniforms, Inc. vs. Florida Charter Foundation, Inc., et al. HEARING 1 agreement. 2 And, Your Honor, if the agreement is three 3 one-year oral agreements, it's run its course 4 because the oral agreement -- the last alleged oral 5 agreement expired in March 2013, so there's nothing 6 to be interfered with. 7 They also seek to avoid the operation of the 8 statute of frauds by invoking Section 672.201 of the 9 Uniform Commercial Code where it says that there's 10 an oral -- an agreement for the price of goods of 11 $500 or more and that the goods are not suitable for 12 sale to others in the ordinary course of the 13 seller's business. And the seller, before notice of 14 repudiation is received and under circumstances 15 which reasonably indicate that the goods are for the 16 buyer, has made a substantial beginning of the 17 manufacture or commitments for the procurement. 18 This is effectively -- these are special -- 19 they're alleging these are specialty goods. Your 20 Honor, these are school uniforms, which, if you 21 drove by any charter school or any public or private 22 school that requires their children to wear school 23 uniforms, these are polo shirts with the three 24 buttons or two buttons. They're the skorts. 25 They're the khaki pants. They are -- in fact, the ——~\ ORANGELEGAL Orange Legal NN 800-275-7991Planet Uniforms, Inc. vs. Florida Charter Foundation, Inc., et al. HEARING 10 1 boxes in which they come in say "universal school 2 uniform." 3 The plaintiff's Web site has a number of 4 different schools that they serve. And when you 5 look on the Web site and you go through the various 6 schools, it's all the same stuff. And while that 7 may be a question of fact, what is not a question of 8 fact is that these goods are: One, not manufactured 9 for Florida Charter or for the defendants; and 10 number two, they weren't sold to us. They had an 11 oral agreement, according to them, that my client 12 said, "You can sell to our students. We don't buy 13 them. We never gave them a nickel. We have no 14 relationship with them on that commercial basis. So 15 you're not manufacturing anything for me. You're 16 manufacturing for sale to the parents and students 17 of this school," if you get past the uniform -- 18 universal school uniform issue. So we don't think 19 they state a cause of action, and the UCC doesn't 20 save them. 21 That next dovetails into one of the more 22 problematic parts of this case is they go back, and 23 if the first -- there's counts against Mr. Sznitken 24 and Mr. Rogers for tortious -- or for fraudulent 25 misrepresentation. And the fraudulent ——~\ ORANGELEGAL Orange Legal NN 800-275-7991Planet Uniforms, Inc. vs. Florida Charter Foundation