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Filing # 54505347 E-Filed 03/31/2017 03:50:46 PM
IN THE CIRCUIT COURT OF THE 17" JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO.: CACE-14-001087 (04)
PLANET T UNIFORMS, INC.,
Plaintiff,
Vv.
FLORIDA CHARTER FOUNDATION, INC.,
D/B/A FRANKLIN ACADEMY CHARTER
SCHOOL, DISCOVERY SCHOOLS, INC.,
iUNIFORMS, INC., RICHARD SHELLOW,
JON THOMAS ROGERS, and SCOTT
SZNITKEN,
Defendants.
FLORIDA CHARTER FOUNDATION, INC.,
D/B/A FRANKLIN ACADEMY CHARTER
SCHOOL,
Counter-Plaintiff,
v.
PLANET T UNIFORMS, INC.,
Counter-Defendant.
/
DEFENDANT DISCOVERY SCHOOLS, INC.’S MOTION TO DISMISS COUNTS XV,
XVIAND XXI OF PLAINTIFF’S SECOND AMENDED COMPLAINT
Defendant Discovery Schools, Inc., (“Discovery”), by and through undersigned counsel,
pursuant to Rule 1.420 of the Florida Rules of Civil Procedure hereby files and serves its Motion
to Dismiss Counts XV, XVI AND XXI of Plaintiffs Second Amended Complaint and states as
follows:
FUERST ITTLEMAN Davip & JOSEPH
1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COM
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 3/31/2017 3:50:46 PM.****CASE NO.: CACE-14-001087 (04)
LEGAL STANDARD:
The purpose of a complaint is to advise the defendant of the nature of the cause of
action asserted by the plaintiff. The function of a motion to dismiss a complaint is
to raise as a question of law the sufficiency of the facts alleged to state a cause of
action. For the purpose of passing upon a motion to dismiss, the court must assume
all the facts alleged in the complaint to be true. Consequently, a motion to dismiss
a complaint must be decided on questions of law and questions of law only. The
purpose of a motion to dismiss is to ascertain if the plaintiff has alleged a good
cause of action, and the court when faced with a motion to dismiss a complaint for
failure to state a cause of action must confine itself strictly to the allegations within
the four corners of the complaint
Kest v. Nathanson, 216 So. 2d 233, 235 (Fla. 4th DCA 1968)
Introduction:
Plaintiff filed its Second Amended Complaint on March 9, 2017. The second amended
complaint fails to allege cognizable claims against Discovery and should therefore be dismissed
in its entirety.
L Count XV — Tortious Interference with a Contractual Relationship—Fails to State a
Claim.
The elements of tortious interference with a contract or business relationship are: (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., Inc., 780 So. 2d 310, 315 (Fla. 4th DCA 2001)
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FUERST ITTLEMAN Davip & JOSEPH
1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
A Discovery did not interfere with a contractual business arrangement because
the oral contract(s) expired; Discovery could not interfere with an expired
contract.
Planet T’s lawsuit turns on whether Franklin, or its agents (including Rogers, Sznitken, and
Discovery Schools'), breached or interfered with the alleged contract or business relationship
between Plaintiff and Franklin; or misrepresented that Franklin would execute a written contract.
Upon inspection of the allegations in the Second Amended Complaint, all of these claims fail
because the alleged oral contracts were for one-year terms. See Sec. Amd. Compl. at §§ 20; 21;
28; 35; 83. Discovery could not have interfered with “contracts” that had expired based on their
own alleged terms.
Because the alleged oral agreement expired pursuant to its own terms, there was no contract
or agreement between Planet T and Franklin with which Discovery could have interfered. Count
XI must be dismissed.
B. Discovery, Franklin’s management company, is an agent of Franklin, acting
within its capacity and scope of its agency.
Planet T claims that Discovery allegedly interfered with the alleged contractual relstionship
as follows:
DISCOVERY SCHOOLS intentionally and unjustifiably interfered with the
business relationship by colluding with ROGERS, SHELLOW, DISCOVERY
SCHOOLS and iUNIFORMS in obtaining financial information to create
iUNIFORMS as evidenced by their creation of iUNIFORMS' website domain,
causing FRANKLIN not to perform.
Sec. Amd. Compl. at 178.
' Planet T recognizes that Defendant Rogers is Discovery’s CEO (Sec. Amd. Compl. at 4 15).
Discovery is Franklin’s management company. Sec. Amd. Compl at § 13. As Discovery’s CEO,
Rogers is an agent of Discovery, a fact that Planet T acknowledged. See Sec. Amd. Compl at §
177 (DISCOVERY SCHOOLS had knowledge of PLANET T's business relationship with
FRANKLIN and knew PLANET Thad legal rights through ROGERS, as CEO.)
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FUERST ITTLEMAN Davip & JOSEPH
1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
As explained in footnote 1, Discovery was an agent of Franklin, Planet T’s unsupported and wholly
conclusory claim in paragraph 178 amounts to an attempt to muddy the waters by “throwing the
spaghetti against the wall to see what sticks.” Planet T’s newly minted claim amounts to a mere
conclusory allegation, without supporting facts, which cannot satisfy its pleading requirements.
Shienvold v. Habie, 627 So. 2d 1203, 1205 (Fla. 4th DCA 1993) (conclusory allegations are
insufficient to state a basis for relief); Doyle v. Flex, 210 So. 2d 493, 494 (Fla. 4th DCA 1968)(mere
legal conclusions inserted in a complaint are insufficient to state a cause of action unless
substantiated by allegations of ultimate fact).
Because Count XI seeks to assert liability on the part of Discovery, much more is required
because of Discovery’s role as an agent. As the Fourth District Court of Appeal stated in Richard
Bertram, Inc. v. Sterling Bank & Trust, 820 So. 2d 963, 965 (Fla. 4th DCA 2002), “an agent is not
liable for tortious interference with a contract of which his or her principal is a party.” Also see,
Fisher v. Grady, 178 So. 852, 860 (Fla. 1937) (stating that “no presumption of fraud will be deemed
to arise against an agent unless it appears that he has personal interests conflicting with those of
the principal.”) Such is the case at bar.
Therefore, because Discovery was acting within the scope of its agency, as a matter of law
it is not liable for tortious interference with a contractual relationship. Plaintiff’s Count XI must
be dismissed.
Cc. Tortious interference will not lie where the contractual relationship is
terminable at will.
Plaintiff's Second Amended Complaint concedes that Planet T and Franklin did not sign a
written agreement. See Sec. Amd. Compl. § 27 (“At the meeting in May of 2011, FRANKLIN
refused to execute the contract submitted by PLANET T.) However, “Rogers orally agreed that if
PLANET T would be the exclusive vendor of FRANKLIN and if performed as promised, a written
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FuERsT ITTLEMAN Davin & JosePH
1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
contract with an extended term would be immediately executed following the 2011-2012 season.”
Sec. Amd. Compl at § 28. As evidence of the unwritten agreement between the parties, Planet T
attached the “Unexecuted Contract between Planet T and Franklin” as Exhibit “A.” Exhibit “A” at
paragraph 2(c) contains the following provision:
Notwithstanding anything to the contrary contained herein, this Agreement may be
terminated by either Party, should it believe that the other Party breached the
Agreement, after the non-breaching Party has provided the other Party with at least
forty (4510) days written notice of the breach and the opportunity to cure same.
(emphasis added).
By its own terms, then, the unexecuted contract described in Exhibit “A” was terminable
at will. The court in Wackenhut Corp. v. Maimone, 389 So. 2d 656, 658 (Fla. 4th DCA 1980),
petition for rev. denied, 411 So.2d 383 (Fla. 1981), made clear that “[w]here the contract interfered
with is terminable at will[,] there is no contract right to have the relation continued, but only an
expectancy.” Because Planet T’s contract was terminable at will, no action for tortious interference
with a contractual relationship may lie and Count XI must be dismissed on these grounds as well.
D. Planet T failed to allege that Discovery induced a third party not to perform.
Plaintiff's claim that Discovery “provid[ed] false or misleading information to Franklin
causing Franklin not to perform in order to hire iUniforms” is not supported by a single ultimate
fact in any of the prior 147 allegations in the Second Amended Complaint. By definition, then, this
allegation is wholly conclusory. As stated earlier, mere conclusory allegations, without supporting
facts, which cannot satisfy its pleading requirements. Shienvold v. Habie, 627 So. 2d 1203, 1205
(Fla. 4th DCA 1993) (conclusory allegations are insufficient to state a basis for relief); Doyle v.
Flex, 210 So. 2d 493, 494 (Fla. 4th DCA 1968)(mere legal conclusions inserted in a complaint are
insufficient to state a cause of action unless substantiated by allegations of ultimate fact).
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FUERST ITTLEMAN Davip & JOSEPH
1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
In addition to making the conclusory allegation, Planet T fails to allege any facts that show
how Discovery allegedly providing “false or misleading information” caused “Franklin not to
perform.” In fact, we know already that Franklin in fact did perform because it permitted Planet T
to provide uniforms for two years without any signed writing between the parties. Sec. Amd.
Compl. at Ff 20; 21; 28; 35; 83.
Therefore, Planet T’s pleading is insufficient under the case law applicable here. Count XI
must be dismissed.
E. Discovery acted, without improper means, to safeguard Franklin’s Interests.
As Franklin’s agent, Discovery’s financial interests are aligned with those of its principal-
-Franklin. Connelly v. Special Rd. & Bridge Dist. No. 5, 126 So. 794, 797 (Fla. 1930) (holding
that an agent’s efforts shall be in the behalf and for the benefit of his principal).
According to the Fourth DCA’s tule as contained in Knight Enterprises, Inc. v. Green,
509 So. 2d 398, 398 (Fla. 4th DCA 1987), “[s]o long as improper means are not employed,
activities in which one engages to safeguard or promote one’s own financial interests are non-
actionable.” Planet T fails even to allege that Discovery used any improper means, thereby
rendering Count XV invalid as a matter of law. Count XI must be dismissed.
I. Count XVI — Tortious Interference with an Advantageous Business Relationship—
Fails to State a Claim.
A. Each of the grounds to dismiss Count XI above apply to Count XII.
Where the elements of a claim for Tortious Interference with a Contractual Relationship
tend to require the existence of a contract, Tortious Interference with an Advantageous Business
Relationship requires something less than a contract (i.¢., “[t]o prove tortious interference [plaintiff
must] prove [] the existence of a business relationship not necessarily evidenced by an enforceable
contract under which the plaintiff has rights...” Realauction.com, LLC v. Grant St. Group, Inc.,
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FUERST ITTLEMAN Davip & JOSEPH
1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
82 So. 3d 1056, 1058 (Fla. 4th DCA 2011)) but more than a “mere offer to sell.” Lake Gateway
Motor Inn, Inc. v. Matt's Sunshine Gift Shops, Inc., 361 So.2d 769 (Fla. 4th DCA 1978), cert.
denied, 368 So.2d 1370 (Fla.1979).
Therefore, Discovery’s grounds for dismissal above numbered II. A. (Because the oral
contract expired pursuant to its terms, Discovery could not have interfered with it); II. B.
(Discovery is an agent of Franklin, acting within its capacity and scope of its agency); II. C.
(Tortious interference will not lie where the contractual relationship is terminable at will); II. D.
(Planet T failed to allege that Discovery induced a third party not to perform); and, II. E.
(Discovery acted, without improper means, to safeguard Franklin’s Interests); also apply to Count
XII and therefore, are repled here as if fully set forth. Under any one of these grounds, Count XII
must be dismissed.
B. Discovery owed no duty to Planet T and was entitled to conduct its business
and legal affairs in the manner it determined to be in its principal’s best
interests.
As shown supra, Discovery was an agent of Franklin and acted within the scope and
authority of its agency. As an agent of Franklin, Discovery’s duty was to Franklin. Connelly v.
Special Rd. & Bridge Dist. No. 5, 126 So. at 797. Since Discovery owed no duty to Planet T and
was acting as an agent of Franklin, it “was entitled to conduct [the] business and legal affairs [of
Franklin] in the manner it determined to be in its own best interests without regard to the effects
on” Planet T. Paparone v. Bankers Life & Cas. Co., 496 So. 2d 865, 868 (Fla. 2d DCA 1986).
Because Discovery owed no duty to Planet T and is allowed as a matter of law to conduct its
business and legal affairs in its own best interests and in Franklin’s best interests, Discovery as a
matter of law did not interfere with Planet T’s alleged business relationship. Count XII must be
dismissed.
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FUERST ITTLEMAN Davip & JOSEPH
1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
Cc Planet T’s business relationship was not evidenced by an actual and
identifiable understanding which in all probability would have been completed
if Discovery had not interfered.
The Fourth DCA stated that, in addition to the four prong test for tortious interference with
an advantageous business relationship, “[a]n action for tortious interference with a prospective
business relationship requires a business relationship evidenced by an actual and identifiable
understanding or agreement which in all probability would have been completed if the defendant
had not interfered.” ISS Cleaning Services Group, Inc. v. Cosby, 745 So. 2d 460, 462 (Fla. 4th
DCA 1999). Here, the understanding or agreement is not actual or identifiable. According to the
Amended Complaint:
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. Sec. Amd. Compl. at J 22.
e In April of 2011, Planet T submitted a draft contract for execution by
Franklin and Planet T and commenced selling and servicing Franklin
customers. See Unexecuted Contract between Planet T and Franklin
attached as Exhibit “A.” Sec. Amd. Compl. at § 23.
e In April of 2011, ROGERS responded to PLANET T with markups on the
proposed contract. Sec. Amd. Compl. at § 24.
e Subsequently, PLANET T attempted numerous times to meet with
FRANKLIN to go over the markups and have the contract executed. Sec.
Amd. Compl. at § 25.
e The meeting with PLANET T and FRANKLIN was delayed by
FRANKLIN until late May of 2011. Sec. Amd. Compl. at § 26.
e At the meeting in May 2011, Franklin’s representative, Rogers, refused to
execute the contract submitted by Planet T. (Emphasis added.) Amd.
Compl. at § 27.
e Ms. Bernardo committed to a meeting in September 2012 in order to secure
the contract with Planet T. However, no meeting ever occurred in
September 2012. Sec. Amd. Compl. at § 37.
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FUERST ITTLEMAN Davip & JOSEPH
1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
e Sznitken also advised that a meeting to “iron out” the details of the parties’
plans going forward would soon be arranged. Compl. at {| 40.
(a) The oral agreement was not actual or identifiable because its terms were not agreed
upon by the parties.
According to the facts alleged in the Second Amended Complaint, there was no actual or
identifiable agreement between the parties. According to Planet T, details had to be ironed out.
Sec. Amd.Compl. at ¥ 40. Furthermore, as the unexecuted contract demonstrates, the parties had
not had a meeting of the minds on key provisions: (1) one party reduced the proposed agreement
from four to two years with the notation that “[w]e did not discuss terms of the agreement [] I
suggest initial two years.” Exhibit A at { 2(a); (2) a party deleted automatic renewal, Exhibit A at
4 2(b); (3) a party limited the scope of the agreement to one school rather than to all of Franklin’s
schools, Exhibit A at{ 4; (4) a party deleted the provision related to subsequent year price increases,
Exhibit A at 4 5(c); (5) a party deleted the requirement for monthly reporting during certain
months, Exhibit A at § 6(c); and, a party deleted a provision requiring “Costs for items paid with
this contribution shall be calculated on actual costs to Planet T and not retail price lists,” Exhibit
Aat47.)
Based on the above, the understanding between the parties was not “actual or identifiable”
and Count XII must be dismissed.
(b) The oral agreement violated the statute of frauds and was unenforceable as a matter
of law.
In Florida, the Statute of Frauds dictates that “[n]o action shall be brought ... upon any
agreement that is not to be performed within the space of 1 year from the making thereof ... unless
the agreement or promise ... [is] in writing...” § 725.01, Fla. Stat. Here, the unexecuted contract
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FUERST ITTLEMAN Davip & JOSEPH
1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
was to be performed over the course of a minimum of two years”. Because the oral agreement
extended beyond one year, the Statute of Frauds applies. Steinberg v. Kearns, 907 So. 2d 691, 693
(Fla. 4th DCA 2005) (“[T]he statute of frauds applies only to contracts not to be performed on
either side within the year, and has no application to contracts which by intent were fully performed
within the year on one side.”)
The purpose of the statute is to “intercept the frequency and success of actions based on
nothing more than loose verbal statements or mere innuendos.” Tanenbaum _y. Biscayne
Osteopathic Hosp., Inc., 190 So.2d 777, 779 (Fla.1966) (quoting Yates v. Ball, 132 Fla. 132, 181
So. 341, 344 (1937)).
The court in Fin. Healthcare Associates, Inc. v. Pub. Health Trust of Miami-Dade County,
488 F. Supp. 2d 1231, 1239 (S.D. Fla. 2007), when faced with similar circumstances and applying
Florida law, found that a “[c]ontract ... to be performed over the course of three years [made] the
Statute of Frauds applicable.” Also see Coleman Co., Inc. v. Cargil Intern. Corp., 731 So. 2d 2, 3
(Fla. 3d DCA 1998) (holding that where the entire term of the contract was for over one year, such
an oral contract is unenforceable pursuant to the Statute of Frauds).
Because the oral contract sued upon here falls within Florida’s Statute of Frauds, it is
unenforceable and Count XII must be dismissed.
(c) Section 672.201(3)(a), Fla. Stat., is not applicable and does not save the oral
agreement from violating the Statute of Frauds.
Planet T attempts without success to save the oral agreement from the Statute of Frauds by
alleging the following:
> The unexecuted contract’s term is disputed according to Exhibit A to the Second Amended
Complaint, which shows a draft with the four year proposed term lined through and “two year”
inserted. Sec. Amd. Compl. Ex. A at 2(a).
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FUERST ITTLEMAN Davip & JOSEPH
1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
FRANKLIN and PLANET T had a business relationship. PLANET T supplied
specially manufactured uniforms and FRANKLIN was required to send its students
to order uniforms exclusively from PLANET T.
Sec. Amd. Compl. at 4 155.
Section 672.201(3)(a), Fla. Stat., provides as follows:
(1) Except as otherwise provided in this section a contract for the sale of goods for
the price of $500 or more is not enforceable by way of action or defense unless
there is some writing sufficient to indicate that a contract for sale has been made
between the parties and signed by the party against whom enforcement is sought or
by his or her authorized agent or broker. A writing is not insufficient because it
omits or incorrectly states a term agreed upon but the contract is not enforceable
under this paragraph beyond the quantity of goods shown in such writing.
(3) A contract which does not satisfy the requirements of subsection (1) but which
is valid in other respects is enforceable:
(a) If the goods are to be specially manufactured for the buyer and are not suitable
for sale to others in the ordinary course of the seller’s business and the seller, before
notice of repudiation is received and under circumstances which reasonably
indicate that the goods are for the buyer, has made either a substantial beginning of
their manufacture or commitments for their procurement.
(Emphasis added.)
For § 672.201, Fla. Stat. to save an oral agreement for a term exceeding one-year, Planet T must
allege material facts showing that (1) the alleged oral agreement was for the sale of goods for the
price of $500 or more; or (2) the goods “are to be specially manufactured for the buyer.” Id.
Planet T fails to allege or provide any material facts showing that the sale for the price of
goods exceeded $500. Planet T does claim that it “ordered inventory...that was valued at over
$100,000.00” (Sec. Amd. Compl. at § 51) but never claims that the goods it sold to Franklin had
a price of $500 or more. Indeed, the unexecuted contract contains no sales price for any goods to
be delivered to Franklin because all of the goods were uniform items to be sold and delivered
directly to Franklin’s students and parents under the unexecuted contract. Sec. Amd. Compl. at
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FUERST ITTLEMAN Davip & JOSEPH
1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
{| 155. In other words, if the buyer under the oral agreement is Franklin, no goods were sold to
Franklin at all and § 672.201, Fla. Stat. does not save the oral agreement from the Statute of Frauds.
If the buyer is defined as Franklin’s students and/or parents, Planet T also failed to allege the price
of the goods sold to such a nonparty “buyer” exceeded $500. Under either scenario, Planet T’s oral
agreements are not exempted from the Statue of Frauds.
Furthermore, Planet T claims that the uniforms were specially manufactured (Id.);
however, Planet T does not allege that the “specially manufactured” items are not suitable for sale
to others in the ordinary course of the seller’s business. Planet T’s failure to plead this element of
the statute necessarily means Planet T failed to state a cause of action for Tortious Interference
with an Advantageous Business Relationship.
Finally, Planet T fails to allege any facts showing that, before notice of repudiation was
received and under circumstances which reasonably indicate that the goods are for the “buyer,”
Planet T made either a substantial beginning of their manufacture or commitments for their
procurement. Planet T merely alleges that “[b]ased upon the representations made by Franklin,
Planet T ordered and currently possesses inventory specifically allotted to Franklin that is valued
at over $100,000.00.” Sec. Amd. Compl. at ] 51. The pleading is faulty because it contains no
material details identifying when the special manufacturing began and how those orders relate to
the January 24, 2013 notice Planet T received stating that Franklin would not be extending their
agreement. Sec. Amd. Compl. at §] 52.
Because Planet T failed to properly plead the elements of § 672.201, Fla. Stat., the Statute
of Frauds applies to the unexecuted contract. As a matter of law, Count XII must be dismissed.
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FUERST ITTLEMAN Davip & JOSEPH
1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
Il. Count XXI — Misappropriation of Trade Secrets—Fails to State a Claim.
The Florida Uniform Trade Secrets Act (“FUTSA”) “displace[s] conflicting tort,
restitutory, and other law of this state providing civil remedies for misappropriation of a trade
secret.” § 688.008(1), Fla. Stat. (Planet T’s claim does not fall within any of the exceptions to Fla.
Stat. § 688.008(1).) Therefore, FUTSA “preempts all claims based on misappropriation of trade
secrets.” Alphamed Pharm. Corp. v. Arriva Pharm., Inc., 391 F. Supp. 2d 1148, 1167 (S.D. Fla.
2005); Del Monte Fresh Produce Co. v. Dole Food Co., Inc., 136 F. Supp. 2d 1271, 1291 (S.D.
Fla. 2001.
Planet T fails to plead the elements clearly laid out in FUTSA; therefore, Planet T’s reliance
on the pre-empted common law elements of a claim for misappropriation of trade secrets requires
dismissal of Count XVII.
Under the FUTSA, “misappropriation” is defined as follows:
(a) Acquisition of a trade secret of another by a person who knows or has
reason to know that the trade secret was acquired by improper means...
§ 688.002, Fla. Stat.
Planet T’s allegations fall flat when FUTSA is applied to the allegations in the Second
Amended Complaint. In paragraph 32, Planet T acknowledged that it “advised FRANKLIN that
the records provided to FRANKLIN were to be kept confidential as they contained trade secret
information.” Under Florida law, Planet T “bears the burden of establishing the information
allegedly taken by [the defendant] is a trade secret and that it took reasonable steps to protect the
information.” VAS Aero Services, LLC v. Arroyo, 860 F. Supp. 2d 1349, 1358 (S.D. Fla. 2012).
The mere act of providing the records to Franklin entered the records into the public domain and
destroyed their alleged confidentiality.
FUTSA defines a trade secret as follows:
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FUERST ITTLEMAN Davip & JOSEPH
1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE
: CACE-14-001087 (04)
“Trade secret” means information, including a formula, pattern, compilation,
program, device, method, technique, or process that:
(a) Derives independent economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper means by, other
persons who can obtain economic value from its disclosure or use; and
(b) Is the subject of efforts that are reasonable under the circumstances to maintain
its secrecy.
(Emphasis added.)
§ 688.002, Fla. Stat.
Planet T has failed to satisfy the two prong test to establish its information constituted a
“trade secret.” In fact, Planet T cannot, as a matter of law, establish that the information is provided
to Franklin were protected trade secrets at all. As a public charter school, formed pursuant to
Chapter 1002, Florida Statutes, Franklin and all of its vendors are bound by Chapter 119, Fla. Stat.,
commonly known as the Florida Public Records Act. § 1002.33(16)(b), Fla. Stat. Any information
provided by a vendor such as Planet T to a public charter school is immediately deemed a public
record, unless the information is specifically exempt. Once a “trade secret” is transmitted to a
public charter school, there is a statutory, readily ascertainable “proper means” that other persons
can use to obtain disclosure: a public records request. See § 119.07(1), Fla. Stat. (“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.”)
Unless exempted, “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” are public records. §
119.011(12), Fla. Stat. Planet T’s alleged “trade secrets” fall squarely within this definition.
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FUERST ITTLEMAN Davip & JOSEPH
1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
The Florida Supreme Court held that “a public record [] is any material prepared in
connection with official agency business which is intended to perpetuate, communicate, or
formalize knowledge of some type.” Shevin v. Byron, Harless, Schaffer, Reid & Associates, Inc.,
379 So. 2d 633, 640 (Fla. 1980). Here, Franklin’s official business was to procure a uniform
vendor. The materials requested, which were voluntarily supplied to Franklin,
“communicated. ..knowledge of some type.” As a matter of law, then, the moment Planet T handed
over the alleged “trade secrets,” those materials became public records subject to inspection and
copying by anyone, i.e., they were no longer “secret.”
Furthermore, Planet T could not convert its material into trade secrets merely by claiming
they are confidential. Amd. Compl. at ¢ 189. See Nat'l Collegiate Athletic Ass'n v. Associated
Press, 18 So. 3d 1201, 1208 (Fla. 1st DCA 2009) (“A public record cannot be transformed into a
private record merely because an agent of the government has promised that it will be kept
private.”)
The question of whether the material at issue is “a public record” is a matter of law. Media
Gen. Convergence, Inc. v. Chief Judge of Thirteenth Judicial Circuit, 840 So. 2d 1008, 1013 (Fla.
2003) (“The determination of what constitutes a public record is a question of law entitled to de
novo review.”
While exemptions to the Public Records Act exist, Planet T failed to plead that any of the
exemptions applied at the time the records were turned over.
Additionally, Planet T’s records may be construed as public records before they were
turned over to Franklin under the provisions of § 119.0701, Fla. Stat.:
(2) In addition to other contract requirements provided by law, each public agency
contract for services must include a provision that requires the contractor to comply
with public records laws, specifically to:
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1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
(a) Keep and maintain public records that ordinarily and necessarily would be
required by the public agency in order to perform the service.
(b) Provide the public with access to public records on the same terms and
conditions that the public agency would provide the records and at a cost that does
not exceed the cost provided in this chapter or as otherwise provided by law.
(c) Ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed except as authorized by
law.
(d) Meet all requirements for retaining public records and transfer, at no cost, to the
public agency all public records in possession of the contractor upon termination of
the contract and destroy any duplicate public records that are exempt or confidential
and exempt from public records disclosure requirements. All records stored
electronically must be provided to the public agency in a format that is compatible
with the information technology systems of the public agency.
(3) Ifa contractor does not comply with a public records request, the public agency
shall enforce the contract provisions in accordance with the contract.
Planet T acknowledges that it provided services on behalf of Franklin:
...FRANKLIN's representatives promised that if PLANET T performed well, it
would sign a contract with PLANET T. PLANET T did in fact perform well as
evidenced by its results for FRANKLIN and received praise from parents during
the past two (2) school years.
Sec. Amd. Compl. at { 50.
On or around February 2013, FRANKLIN refused to send its students to PLANET
T for their school’s uniforms.
Sec. Amd. Compl. at 4] 53.
.-- FRANKLIN informed PLANET T that not only would it not receive a contract,
PLANET T would no longer be able to sell the FRANKLIN specially manufactured
uniforms it currently has in inventory after March 31, 2013.
Sec. Amd. Compl. at § 54.
According to the Florida Attorney General, Planet T was already under the auspices of the
Public Records Act when it commenced selling and servicing Franklin customers:
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FUERST ITTLEMAN Davip & JOSEPH
1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE
: CACE-14-001087 (04)
The requirements of section 119.0701, Florida Statutes, apply to “’contractor[s]’
who contract with public agencies and are acting on behalf of the public agency in
providing those services. Thus, based on the terms of section 119.0701(1)(a),
Florida Statutes, the nature and scope of the services provided by a private
contractor determine whether he or she is acting on behalf of an agency and would
be subject to the requirements of the statute.
Thus, for those contractors who are subject to its provisions, the statute treats the
private contractor as one taking the place of or standing in the shoes of the public
agency, that is “acting on behalf of” the public agency, and requires that the private
entity comply with the same public records requirements as the public agency.
(Emphasis in the original.) Fla. Att'y Gen. Op. 2014-06 (2014)
Planet T sold uniforms to the parents of Franklin’s students under what amounts to an oral
licensing agreement, which makes Planet T, as a matter of law, a contractor under the Attorney
General’s opinion. Planet T’s inventory lists and its sales and margin information, which it
provided to Franklin voluntarily, became by operation of law, public records under the statute even
before they were turned over to Franklin.
To the extent that Discovery’s receipt of the alleged trade secrets did not confer public
records status on the material, Planet T still failed to plead any fact indicating that it took
reasonable steps to protect their “trade secrets,” such as citing, at the time the material was turned
over, an exemption that deemed the alleged “trade secrets” non-disclosable under the Public
Records Act.
Planet T for a third time fails to plead a crucial element of a claim for misappropriation of
a trade secret, namely, that plaintiff took reasonable steps to protect the alleged trade secrets. Here,
at a minimum, Planet T failed to label the documents as confidential and exempt under Florida’s
Public Records Act. This failure is fatal to this claim. See § 688.002(4), Fla. Stat. (“Trade secret”
means information, including a formula, pattern, compilation, program, device, method, technique,
or process that...[i]s the subject of efforts that are reasonable under the circumstances to
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FUERST ITTLEMAN Davip & JOSEPH
1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
maintain its secrecy.)(emphasis added); also see, Sepro Corp. v. Florida Dep't of Envtl. Prot., 839
So. 2d 781, 784 (Fla. Ist DCA 2003) (“The 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.”) Here, then, Planet T was required to take steps to ensure that their alleged
trade secrets could be kept confidential given the circumstances and it failed to do so.
Count XII fails because Planet T’s alleged trade secrets were exposed to the public by its
own voluntary act. Therefore, Discovery could not misappropriate them because they were lost
any status they may have had upon delivery to Franklin. Planet T failed to state a cause of action
for misappropriation of “trade secrets” under the FUTSA and Count XVII must be dismissed.
Request for Attorney’s Fees
Discovery, pursuant to § 688.05, Fla. Stat. requests an award of attorney’s fees incurred in
connection defending the Plaintiffs claims for misappropriation of trade secrets.
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FUERST ITTLEMAN Davip & JOSEPH
1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
WHEREFORE, Defendant F Discovery Schools, Inc. respectfully requests that this
Honorable Court dismiss Counts XV, XVI AND XXI of Plaintiff Planet T Uniforms, Inc.’s Second
Amended Complaint and to award Defendant Discovery its attorney’s fees, if applicable, its costs
incurred in defending this action, along with any and all other relief this Court deems just and
proper.
Respectfully submitted,
FUERST ITTLEMAN DAVID & JOSEPH
1001 Brickell Bay Drive, Suite 3112
Miami, Florida 33131
Tel. (305) 350-5690
Fax (305) 371-8989
E-mail: Cdavid@fuerstlaw.com
E-mail: Tdavid@fuerstlaw.com
Secondary: dmuller@fuerstlaw.com
Counsel for Defendants
By: /s' CHRISTOPHER M. DAVID
Florida Bar No. 985163
Thomas M. David
Florida Bar No. 20846
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on March 31, 2017, I electronically filed the foregoing
document using Florida’s eFiling Portal. | also certify that the foregoing document is being served
this day on all parties of record via the E-service list associated with this action
!s/ Christopher M. David
CHRISTOPHER M. DAVID
Florida Bar No. 985163
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FUERST ITTLEMAN Davip & JOSEPH
1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COM
Preview
Filing # 54505347 E-Filed 03/31/2017 03:50:46 PM IN THE CIRCUIT COURT OF THE 17" JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE-14-001087 (04) PLANET T UNIFORMS, INC., Plaintiff, Vv. FLORIDA CHARTER FOUNDATION, INC., D/B/A FRANKLIN ACADEMY CHARTER SCHOOL, DISCOVERY SCHOOLS, INC., iUNIFORMS, INC., RICHARD SHELLOW, JON THOMAS ROGERS, and SCOTT SZNITKEN, Defendants. FLORIDA CHARTER FOUNDATION, INC., D/B/A FRANKLIN ACADEMY CHARTER SCHOOL, Counter-Plaintiff, v. PLANET T UNIFORMS, INC., Counter-Defendant. / DEFENDANT DISCOVERY SCHOOLS, INC.’S MOTION TO DISMISS COUNTS XV, XVIAND XXI OF PLAINTIFF’S SECOND AMENDED COMPLAINT Defendant Discovery Schools, Inc., (“Discovery”), by and through undersigned counsel, pursuant to Rule 1.420 of the Florida Rules of Civil Procedure hereby files and serves its Motion to Dismiss Counts XV, XVI AND XXI of Plaintiffs Second Amended Complaint and states as follows: FUERST ITTLEMAN Davip & JOSEPH 1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COM *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 3/31/2017 3:50:46 PM.****CASE NO.: CACE-14-001087 (04) LEGAL STANDARD: The purpose of a complaint is to advise the defendant of the nature of the cause of action asserted by the plaintiff. The function of a motion to dismiss a complaint is to raise as a question of law the sufficiency of the facts alleged to state a cause of action. For the purpose of passing upon a motion to dismiss, the court must assume all the facts alleged in the complaint to be true. Consequently, a motion to dismiss a complaint must be decided on questions of law and questions of law only. The purpose of a motion to dismiss is to ascertain if the plaintiff has alleged a good cause of action, and the court when faced with a motion to dismiss a complaint for failure to state a cause of action must confine itself strictly to the allegations within the four corners of the complaint Kest v. Nathanson, 216 So. 2d 233, 235 (Fla. 4th DCA 1968) Introduction: Plaintiff filed its Second Amended Complaint on March 9, 2017. The second amended complaint fails to allege cognizable claims against Discovery and should therefore be dismissed in its entirety. L Count XV — Tortious Interference with a Contractual Relationship—Fails to State a Claim. The elements of tortious interference with a contract or business relationship are: (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., Inc., 780 So. 2d 310, 315 (Fla. 4th DCA 2001) 2 FUERST ITTLEMAN Davip & JOSEPH 1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) A Discovery did not interfere with a contractual business arrangement because the oral contract(s) expired; Discovery could not interfere with an expired contract. Planet T’s lawsuit turns on whether Franklin, or its agents (including Rogers, Sznitken, and Discovery Schools'), breached or interfered with the alleged contract or business relationship between Plaintiff and Franklin; or misrepresented that Franklin would execute a written contract. Upon inspection of the allegations in the Second Amended Complaint, all of these claims fail because the alleged oral contracts were for one-year terms. See Sec. Amd. Compl. at §§ 20; 21; 28; 35; 83. Discovery could not have interfered with “contracts” that had expired based on their own alleged terms. Because the alleged oral agreement expired pursuant to its own terms, there was no contract or agreement between Planet T and Franklin with which Discovery could have interfered. Count XI must be dismissed. B. Discovery, Franklin’s management company, is an agent of Franklin, acting within its capacity and scope of its agency. Planet T claims that Discovery allegedly interfered with the alleged contractual relstionship as follows: DISCOVERY SCHOOLS intentionally and unjustifiably interfered with the business relationship by colluding with ROGERS, SHELLOW, DISCOVERY SCHOOLS and iUNIFORMS in obtaining financial information to create iUNIFORMS as evidenced by their creation of iUNIFORMS' website domain, causing FRANKLIN not to perform. Sec. Amd. Compl. at 178. ' Planet T recognizes that Defendant Rogers is Discovery’s CEO (Sec. Amd. Compl. at 4 15). Discovery is Franklin’s management company. Sec. Amd. Compl at § 13. As Discovery’s CEO, Rogers is an agent of Discovery, a fact that Planet T acknowledged. See Sec. Amd. Compl at § 177 (DISCOVERY SCHOOLS had knowledge of PLANET T's business relationship with FRANKLIN and knew PLANET Thad legal rights through ROGERS, as CEO.) 3 FUERST ITTLEMAN Davip & JOSEPH 1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) As explained in footnote 1, Discovery was an agent of Franklin, Planet T’s unsupported and wholly conclusory claim in paragraph 178 amounts to an attempt to muddy the waters by “throwing the spaghetti against the wall to see what sticks.” Planet T’s newly minted claim amounts to a mere conclusory allegation, without supporting facts, which cannot satisfy its pleading requirements. Shienvold v. Habie, 627 So. 2d 1203, 1205 (Fla. 4th DCA 1993) (conclusory allegations are insufficient to state a basis for relief); Doyle v. Flex, 210 So. 2d 493, 494 (Fla. 4th DCA 1968)(mere legal conclusions inserted in a complaint are insufficient to state a cause of action unless substantiated by allegations of ultimate fact). Because Count XI seeks to assert liability on the part of Discovery, much more is required because of Discovery’s role as an agent. As the Fourth District Court of Appeal stated in Richard Bertram, Inc. v. Sterling Bank & Trust, 820 So. 2d 963, 965 (Fla. 4th DCA 2002), “an agent is not liable for tortious interference with a contract of which his or her principal is a party.” Also see, Fisher v. Grady, 178 So. 852, 860 (Fla. 1937) (stating that “no presumption of fraud will be deemed to arise against an agent unless it appears that he has personal interests conflicting with those of the principal.”) Such is the case at bar. Therefore, because Discovery was acting within the scope of its agency, as a matter of law it is not liable for tortious interference with a contractual relationship. Plaintiff’s Count XI must be dismissed. Cc. Tortious interference will not lie where the contractual relationship is terminable at will. Plaintiff's Second Amended Complaint concedes that Planet T and Franklin did not sign a written agreement. See Sec. Amd. Compl. § 27 (“At the meeting in May of 2011, FRANKLIN refused to execute the contract submitted by PLANET T.) However, “Rogers orally agreed that if PLANET T would be the exclusive vendor of FRANKLIN and if performed as promised, a written 4 FuERsT ITTLEMAN Davin & JosePH 1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) contract with an extended term would be immediately executed following the 2011-2012 season.” Sec. Amd. Compl at § 28. As evidence of the unwritten agreement between the parties, Planet T attached the “Unexecuted Contract between Planet T and Franklin” as Exhibit “A.” Exhibit “A” at paragraph 2(c) contains the following provision: Notwithstanding anything to the contrary contained herein, this Agreement may be terminated by either Party, should it believe that the other Party breached the Agreement, after the non-breaching Party has provided the other Party with at least forty (4510) days written notice of the breach and the opportunity to cure same. (emphasis added). By its own terms, then, the unexecuted contract described in Exhibit “A” was terminable at will. The court in Wackenhut Corp. v. Maimone, 389 So. 2d 656, 658 (Fla. 4th DCA 1980), petition for rev. denied, 411 So.2d 383 (Fla. 1981), made clear that “[w]here the contract interfered with is terminable at will[,] there is no contract right to have the relation continued, but only an expectancy.” Because Planet T’s contract was terminable at will, no action for tortious interference with a contractual relationship may lie and Count XI must be dismissed on these grounds as well. D. Planet T failed to allege that Discovery induced a third party not to perform. Plaintiff's claim that Discovery “provid[ed] false or misleading information to Franklin causing Franklin not to perform in order to hire iUniforms” is not supported by a single ultimate fact in any of the prior 147 allegations in the Second Amended Complaint. By definition, then, this allegation is wholly conclusory. As stated earlier, mere conclusory allegations, without supporting facts, which cannot satisfy its pleading requirements. Shienvold v. Habie, 627 So. 2d 1203, 1205 (Fla. 4th DCA 1993) (conclusory allegations are insufficient to state a basis for relief); Doyle v. Flex, 210 So. 2d 493, 494 (Fla. 4th DCA 1968)(mere legal conclusions inserted in a complaint are insufficient to state a cause of action unless substantiated by allegations of ultimate fact). 5 FUERST ITTLEMAN Davip & JOSEPH 1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) In addition to making the conclusory allegation, Planet T fails to allege any facts that show how Discovery allegedly providing “false or misleading information” caused “Franklin not to perform.” In fact, we know already that Franklin in fact did perform because it permitted Planet T to provide uniforms for two years without any signed writing between the parties. Sec. Amd. Compl. at Ff 20; 21; 28; 35; 83. Therefore, Planet T’s pleading is insufficient under the case law applicable here. Count XI must be dismissed. E. Discovery acted, without improper means, to safeguard Franklin’s Interests. As Franklin’s agent, Discovery’s financial interests are aligned with those of its principal- -Franklin. Connelly v. Special Rd. & Bridge Dist. No. 5, 126 So. 794, 797 (Fla. 1930) (holding that an agent’s efforts shall be in the behalf and for the benefit of his principal). According to the Fourth DCA’s tule as contained in Knight Enterprises, Inc. v. Green, 509 So. 2d 398, 398 (Fla. 4th DCA 1987), “[s]o long as improper means are not employed, activities in which one engages to safeguard or promote one’s own financial interests are non- actionable.” Planet T fails even to allege that Discovery used any improper means, thereby rendering Count XV invalid as a matter of law. Count XI must be dismissed. I. Count XVI — Tortious Interference with an Advantageous Business Relationship— Fails to State a Claim. A. Each of the grounds to dismiss Count XI above apply to Count XII. Where the elements of a claim for Tortious Interference with a Contractual Relationship tend to require the existence of a contract, Tortious Interference with an Advantageous Business Relationship requires something less than a contract (i.¢., “[t]o prove tortious interference [plaintiff must] prove [] the existence of a business relationship not necessarily evidenced by an enforceable contract under which the plaintiff has rights...” Realauction.com, LLC v. Grant St. Group, Inc., 6 FUERST ITTLEMAN Davip & JOSEPH 1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) 82 So. 3d 1056, 1058 (Fla. 4th DCA 2011)) but more than a “mere offer to sell.” Lake Gateway Motor Inn, Inc. v. Matt's Sunshine Gift Shops, Inc., 361 So.2d 769 (Fla. 4th DCA 1978), cert. denied, 368 So.2d 1370 (Fla.1979). Therefore, Discovery’s grounds for dismissal above numbered II. A. (Because the oral contract expired pursuant to its terms, Discovery could not have interfered with it); II. B. (Discovery is an agent of Franklin, acting within its capacity and scope of its agency); II. C. (Tortious interference will not lie where the contractual relationship is terminable at will); II. D. (Planet T failed to allege that Discovery induced a third party not to perform); and, II. E. (Discovery acted, without improper means, to safeguard Franklin’s Interests); also apply to Count XII and therefore, are repled here as if fully set forth. Under any one of these grounds, Count XII must be dismissed. B. Discovery owed no duty to Planet T and was entitled to conduct its business and legal affairs in the manner it determined to be in its principal’s best interests. As shown supra, Discovery was an agent of Franklin and acted within the scope and authority of its agency. As an agent of Franklin, Discovery’s duty was to Franklin. Connelly v. Special Rd. & Bridge Dist. No. 5, 126 So. at 797. Since Discovery owed no duty to Planet T and was acting as an agent of Franklin, it “was entitled to conduct [the] business and legal affairs [of Franklin] in the manner it determined to be in its own best interests without regard to the effects on” Planet T. Paparone v. Bankers Life & Cas. Co., 496 So. 2d 865, 868 (Fla. 2d DCA 1986). Because Discovery owed no duty to Planet T and is allowed as a matter of law to conduct its business and legal affairs in its own best interests and in Franklin’s best interests, Discovery as a matter of law did not interfere with Planet T’s alleged business relationship. Count XII must be dismissed. 7 FUERST ITTLEMAN Davip & JOSEPH 1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) Cc Planet T’s business relationship was not evidenced by an actual and identifiable understanding which in all probability would have been completed if Discovery had not interfered. The Fourth DCA stated that, in addition to the four prong test for tortious interference with an advantageous business relationship, “[a]n action for tortious interference with a prospective business relationship requires a business relationship evidenced by an actual and identifiable understanding or agreement which in all probability would have been completed if the defendant had not interfered.” ISS Cleaning Services Group, Inc. v. Cosby, 745 So. 2d 460, 462 (Fla. 4th DCA 1999). Here, the understanding or agreement is not actual or identifiable. According to the Amended Complaint: 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. Sec. Amd. Compl. at J 22. e In April of 2011, Planet T submitted a draft contract for execution by Franklin and Planet T and commenced selling and servicing Franklin customers. See Unexecuted Contract between Planet T and Franklin attached as Exhibit “A.” Sec. Amd. Compl. at § 23. e In April of 2011, ROGERS responded to PLANET T with markups on the proposed contract. Sec. Amd. Compl. at § 24. e Subsequently, PLANET T attempted numerous times to meet with FRANKLIN to go over the markups and have the contract executed. Sec. Amd. Compl. at § 25. e The meeting with PLANET T and FRANKLIN was delayed by FRANKLIN until late May of 2011. Sec. Amd. Compl. at § 26. e At the meeting in May 2011, Franklin’s representative, Rogers, refused to execute the contract submitted by Planet T. (Emphasis added.) Amd. Compl. at § 27. e Ms. Bernardo committed to a meeting in September 2012 in order to secure the contract with Planet T. However, no meeting ever occurred in September 2012. Sec. Amd. Compl. at § 37. 8 FUERST ITTLEMAN Davip & JOSEPH 1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) e Sznitken also advised that a meeting to “iron out” the details of the parties’ plans going forward would soon be arranged. Compl. at {| 40. (a) The oral agreement was not actual or identifiable because its terms were not agreed upon by the parties. According to the facts alleged in the Second Amended Complaint, there was no actual or identifiable agreement between the parties. According to Planet T, details had to be ironed out. Sec. Amd.Compl. at ¥ 40. Furthermore, as the unexecuted contract demonstrates, the parties had not had a meeting of the minds on key provisions: (1) one party reduced the proposed agreement from four to two years with the notation that “[w]e did not discuss terms of the agreement [] I suggest initial two years.” Exhibit A at { 2(a); (2) a party deleted automatic renewal, Exhibit A at 4 2(b); (3) a party limited the scope of the agreement to one school rather than to all of Franklin’s schools, Exhibit A at{ 4; (4) a party deleted the provision related to subsequent year price increases, Exhibit A at 4 5(c); (5) a party deleted the requirement for monthly reporting during certain months, Exhibit A at § 6(c); and, a party deleted a provision requiring “Costs for items paid with this contribution shall be calculated on actual costs to Planet T and not retail price lists,” Exhibit Aat47.) Based on the above, the understanding between the parties was not “actual or identifiable” and Count XII must be dismissed. (b) The oral agreement violated the statute of frauds and was unenforceable as a matter of law. In Florida, the Statute of Frauds dictates that “[n]o action shall be brought ... upon any agreement that is not to be performed within the space of 1 year from the making thereof ... unless the agreement or promise ... [is] in writing...” § 725.01, Fla. Stat. Here, the unexecuted contract 9 FUERST ITTLEMAN Davip & JOSEPH 1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) was to be performed over the course of a minimum of two years”. Because the oral agreement extended beyond one year, the Statute of Frauds applies. Steinberg v. Kearns, 907 So. 2d 691, 693 (Fla. 4th DCA 2005) (“[T]he statute of frauds applies only to contracts not to be performed on either side within the year, and has no application to contracts which by intent were fully performed within the year on one side.”) The purpose of the statute is to “intercept the frequency and success of actions based on nothing more than loose verbal statements or mere innuendos.” Tanenbaum _y. Biscayne Osteopathic Hosp., Inc., 190 So.2d 777, 779 (Fla.1966) (quoting Yates v. Ball, 132 Fla. 132, 181 So. 341, 344 (1937)). The court in Fin. Healthcare Associates, Inc. v. Pub. Health Trust of Miami-Dade County, 488 F. Supp. 2d 1231, 1239 (S.D. Fla. 2007), when faced with similar circumstances and applying Florida law, found that a “[c]ontract ... to be performed over the course of three years [made] the Statute of Frauds applicable.” Also see Coleman Co., Inc. v. Cargil Intern. Corp., 731 So. 2d 2, 3 (Fla. 3d DCA 1998) (holding that where the entire term of the contract was for over one year, such an oral contract is unenforceable pursuant to the Statute of Frauds). Because the oral contract sued upon here falls within Florida’s Statute of Frauds, it is unenforceable and Count XII must be dismissed. (c) Section 672.201(3)(a), Fla. Stat., is not applicable and does not save the oral agreement from violating the Statute of Frauds. Planet T attempts without success to save the oral agreement from the Statute of Frauds by alleging the following: > The unexecuted contract’s term is disputed according to Exhibit A to the Second Amended Complaint, which shows a draft with the four year proposed term lined through and “two year” inserted. Sec. Amd. Compl. Ex. A at 2(a). 10 FUERST ITTLEMAN Davip & JOSEPH 1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) FRANKLIN and PLANET T had a business relationship. PLANET T supplied specially manufactured uniforms and FRANKLIN was required to send its students to order uniforms exclusively from PLANET T. Sec. Amd. Compl. at 4 155. Section 672.201(3)(a), Fla. Stat., provides as follows: (1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his or her authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing. (3) A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable: (a) If the goods are to be specially manufactured for the buyer and are not suitable for sale to others in the ordinary course of the seller’s business and the seller, before notice of repudiation is received and under circumstances which reasonably indicate that the goods are for the buyer, has made either a substantial beginning of their manufacture or commitments for their procurement. (Emphasis added.) For § 672.201, Fla. Stat. to save an oral agreement for a term exceeding one-year, Planet T must allege material facts showing that (1) the alleged oral agreement was for the sale of goods for the price of $500 or more; or (2) the goods “are to be specially manufactured for the buyer.” Id. Planet T fails to allege or provide any material facts showing that the sale for the price of goods exceeded $500. Planet T does claim that it “ordered inventory...that was valued at over $100,000.00” (Sec. Amd. Compl. at § 51) but never claims that the goods it sold to Franklin had a price of $500 or more. Indeed, the unexecuted contract contains no sales price for any goods to be delivered to Franklin because all of the goods were uniform items to be sold and delivered directly to Franklin’s students and parents under the unexecuted contract. Sec. Amd. Compl. at 11 FUERST ITTLEMAN Davip & JOSEPH 1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) {| 155. In other words, if the buyer under the oral agreement is Franklin, no goods were sold to Franklin at all and § 672.201, Fla. Stat. does not save the oral agreement from the Statute of Frauds. If the buyer is defined as Franklin’s students and/or parents, Planet T also failed to allege the price of the goods sold to such a nonparty “buyer” exceeded $500. Under either scenario, Planet T’s oral agreements are not exempted from the Statue of Frauds. Furthermore, Planet T claims that the uniforms were specially manufactured (Id.); however, Planet T does not allege that the “specially manufactured” items are not suitable for sale to others in the ordinary course of the seller’s business. Planet T’s failure to plead this element of the statute necessarily means Planet T failed to state a cause of action for Tortious Interference with an Advantageous Business Relationship. Finally, Planet T fails to allege any facts showing that, before notice of repudiation was received and under circumstances which reasonably indicate that the goods are for the “buyer,” Planet T made either a substantial beginning of their manufacture or commitments for their procurement. Planet T merely alleges that “[b]ased upon the representations made by Franklin, Planet T ordered and currently possesses inventory specifically allotted to Franklin that is valued at over $100,000.00.” Sec. Amd. Compl. at ] 51. The pleading is faulty because it contains no material details identifying when the special manufacturing began and how those orders relate to the January 24, 2013 notice Planet T received stating that Franklin would not be extending their agreement. Sec. Amd. Compl. at §] 52. Because Planet T failed to properly plead the elements of § 672.201, Fla. Stat., the Statute of Frauds applies to the unexecuted contract. As a matter of law, Count XII must be dismissed. 12 FUERST ITTLEMAN Davip & JOSEPH 1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) Il. Count XXI — Misappropriation of Trade Secrets—Fails to State a Claim. The Florida Uniform Trade Secrets Act (“FUTSA”) “displace[s] conflicting tort, restitutory, and other law of this state providing civil remedies for misappropriation of a trade secret.” § 688.008(1), Fla. Stat. (Planet T’s claim does not fall within any of the exceptions to Fla. Stat. § 688.008(1).) Therefore, FUTSA “preempts all claims based on misappropriation of trade secrets.” Alphamed Pharm. Corp. v. Arriva Pharm., Inc., 391 F. Supp. 2d 1148, 1167 (S.D. Fla. 2005); Del Monte Fresh Produce Co. v. Dole Food Co., Inc., 136 F. Supp. 2d 1271, 1291 (S.D. Fla. 2001. Planet T fails to plead the elements clearly laid out in FUTSA; therefore, Planet T’s reliance on the pre-empted common law elements of a claim for misappropriation of trade secrets requires dismissal of Count XVII. Under the FUTSA, “misappropriation” is defined as follows: (a) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means... § 688.002, Fla. Stat. Planet T’s allegations fall flat when FUTSA is applied to the allegations in the Second Amended Complaint. In paragraph 32, Planet T acknowledged that it “advised FRANKLIN that the records provided to FRANKLIN were to be kept confidential as they contained trade secret information.” Under Florida law, Planet T “bears the burden of establishing the information allegedly taken by [the defendant] is a trade secret and that it took reasonable steps to protect the information.” VAS Aero Services, LLC v. Arroyo, 860 F. Supp. 2d 1349, 1358 (S.D. Fla. 2012). The mere act of providing the records to Franklin entered the records into the public domain and destroyed their alleged confidentiality. FUTSA defines a trade secret as follows: 13 FUERST ITTLEMAN Davip & JOSEPH 1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE : CACE-14-001087 (04) “Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process that: (a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. (Emphasis added.) § 688.002, Fla. Stat. Planet T has failed to satisfy the two prong test to establish its information constituted a “trade secret.” In fact, Planet T cannot, as a matter of law, establish that the information is provided to Franklin were protected trade secrets at all. As a public charter school, formed pursuant to Chapter 1002, Florida Statutes, Franklin and all of its vendors are bound by Chapter 119, Fla. Stat., commonly known as the Florida Public Records Act. § 1002.33(16)(b), Fla. Stat. Any information provided by a vendor such as Planet T to a public charter school is immediately deemed a public record, unless the information is specifically exempt. Once a “trade secret” is transmitted to a public charter school, there is a statutory, readily ascertainable “proper means” that other persons can use to obtain disclosure: a public records request. See § 119.07(1), Fla. Stat. (“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.”) Unless exempted, “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” are public records. § 119.011(12), Fla. Stat. Planet T’s alleged “trade secrets” fall squarely within this definition. 14 FUERST ITTLEMAN Davip & JOSEPH 1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) The Florida Supreme Court held that “a public record [] is any material prepared in connection with official agency business which is intended to perpetuate, communicate, or formalize knowledge of some type.” Shevin v. Byron, Harless, Schaffer, Reid & Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980). Here, Franklin’s official business was to procure a uniform vendor. The materials requested, which were voluntarily supplied to Franklin, “communicated. ..knowledge of some type.” As a matter of law, then, the moment Planet T handed over the alleged “trade secrets,” those materials became public records subject to inspection and copying by anyone, i.e., they were no longer “secret.” Furthermore, Planet T could not convert its material into trade secrets merely by claiming they are confidential. Amd. Compl. at ¢ 189. See Nat'l Collegiate Athletic Ass'n v. Associated Press, 18 So. 3d 1201, 1208 (Fla. 1st DCA 2009) (“A public record cannot be transformed into a private record merely because an agent of the government has promised that it will be kept private.”) The question of whether the material at issue is “a public record” is a matter of law. Media Gen. Convergence, Inc. v. Chief Judge of Thirteenth Judicial Circuit, 840 So. 2d 1008, 1013 (Fla. 2003) (“The determination of what constitutes a public record is a question of law entitled to de novo review.” While exemptions to the Public Records Act exist, Planet T failed to plead that any of the exemptions applied at the time the records were turned over. Additionally, Planet T’s records may be construed as public records before they were turned over to Franklin under the provisions of § 119.0701, Fla. Stat.: (2) In addition to other contract requirements provided by law, each public agency contract for services must include a provision that requires the contractor to comply with public records laws, specifically to: 15 FUERST ITTLEMAN Davip & JOSEPH 1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) (a) Keep and maintain public records that ordinarily and necessarily would be required by the public agency in order to perform the service. (b) Provide the public with access to public records on the same terms and conditions that the public agency would provide the records and at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (c) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. (d) Meet all requirements for retaining public records and transfer, at no cost, to the public agency all public records in possession of the contractor upon termination of the contract and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to the public agency in a format that is compatible with the information technology systems of the public agency. (3) Ifa contractor does not comply with a public records request, the public agency shall enforce the contract provisions in accordance with the contract. Planet T acknowledges that it provided services on behalf of Franklin: ...FRANKLIN's representatives promised that if PLANET T performed well, it would sign a contract with PLANET T. PLANET T did in fact perform well as evidenced by its results for FRANKLIN and received praise from parents during the past two (2) school years. Sec. Amd. Compl. at { 50. On or around February 2013, FRANKLIN refused to send its students to PLANET T for their school’s uniforms. Sec. Amd. Compl. at 4] 53. .-- FRANKLIN informed PLANET T that not only would it not receive a contract, PLANET T would no longer be able to sell the FRANKLIN specially manufactured uniforms it currently has in inventory after March 31, 2013. Sec. Amd. Compl. at § 54. According to the Florida Attorney General, Planet T was already under the auspices of the Public Records Act when it commenced selling and servicing Franklin customers: 16 FUERST ITTLEMAN Davip & JOSEPH 1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE : CACE-14-001087 (04) The requirements of section 119.0701, Florida Statutes, apply to “’contractor[s]’ who contract with public agencies and are acting on behalf of the public agency in providing those services. Thus, based on the terms of section 119.0701(1)(a), Florida Statutes, the nature and scope of the services provided by a private contractor determine whether he or she is acting on behalf of an agency and would be subject to the requirements of the statute. Thus, for those contractors who are subject to its provisions, the statute treats the private contractor as one taking the place of or standing in the shoes of the public agency, that is “acting on behalf of” the public agency, and requires that the private entity comply with the same public records requirements as the public agency. (Emphasis in the original.) Fla. Att'y Gen. Op. 2014-06 (2014) Planet T sold uniforms to the parents of Franklin’s students under what amounts to an oral licensing agreement, which makes Planet T, as a matter of law, a contractor under the Attorney General’s opinion. Planet T’s inventory lists and its sales and margin information, which it provided to Franklin voluntarily, became by operation of law, public records under the statute even before they were turned over to Franklin. To the extent that Discovery’s receipt of the alleged trade secrets did not confer public records status on the material, Planet T still failed to plead any fact indicating that it took reasonable steps to protect their “trade secrets,” such as citing, at the time the material was turned over, an exemption that deemed the alleged “trade secrets” non-disclosable under the Public Records Act. Planet T for a third time fails to plead a crucial element of a claim for misappropriation of a trade secret, namely, that plaintiff took reasonable steps to protect the alleged trade secrets. Here, at a minimum, Planet T failed to label the documents as confidential and exempt under Florida’s Public Records Act. This failure is fatal to this claim. See § 688.002(4), Fla. Stat. (“Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process that...[i]s the subject of efforts that are reasonable under the circumstances to 17 FUERST ITTLEMAN Davip & JOSEPH 1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) maintain its secrecy.)(emphasis added); also see, Sepro Corp. v. Florida Dep't of Envtl. Prot., 839 So. 2d 781, 784 (Fla. Ist DCA 2003) (“The 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.”) Here, then, Planet T was required to take steps to ensure that their alleged trade secrets could be kept confidential given the circumstances and it failed to do so. Count XII fails because Planet T’s alleged trade secrets were exposed to the public by its own voluntary act. Therefore, Discovery could not misappropriate them because they were lost any status they may have had upon delivery to Franklin. Planet T failed to state a cause of action for misappropriation of “trade secrets” under the FUTSA and Count XVII must be dismissed. Request for Attorney’s Fees Discovery, pursuant to § 688.05, Fla. Stat. requests an award of attorney’s fees incurred in connection defending the Plaintiffs claims for misappropriation of trade secrets. 18 FUERST ITTLEMAN Davip & JOSEPH 1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) WHEREFORE, Defendant F Discovery Schools, Inc. respectfully requests that this Honorable Court dismiss Counts XV, XVI AND XXI of Plaintiff Planet T Uniforms, Inc.’s Second Amended Complaint and to award Defendant Discovery its attorney’s fees, if applicable, its costs incurred in defending this action, along with any and all other relief this Court deems just and proper. Respectfully submitted, FUERST ITTLEMAN DAVID & JOSEPH 1001 Brickell Bay Drive, Suite 3112 Miami, Florida 33131 Tel. (305) 350-5690 Fax (305) 371-8989 E-mail: Cdavid@fuerstlaw.com E-mail: Tdavid@fuerstlaw.com Secondary: dmuller@fuerstlaw.com Counsel for Defendants By: /s' CHRISTOPHER M. DAVID Florida Bar No. 985163 Thomas M. David Florida Bar No. 20846 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on March 31, 2017, I electronically filed the foregoing document using Florida’s eFiling Portal. | also certify that the foregoing document is being served this day on all parties of record via the E-service list associated with this action !s/ Christopher M. David CHRISTOPHER M. DAVID Florida Bar No. 985163 19 FUERST ITTLEMAN Davip & JOSEPH 1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COM