Preview
Filing# 139907193 E-Filed 12/07/2021 05:39:51 PM
IN THE CIRCUIT COURT FOR THE 17th JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO- CACE -19-22558 (12)
JOSHUA PARDUE, an individual,derivatively
on behalf of CATERED FIT HOLDINGS, INC.
Plaintiff,
VS.
CATERED FIT CORP, a Florida corporation,
CATERED FIT SERVICES, INC.,
a Florida corporation,and ADAM FRIDEN, an
individual
Defendants,
and
CATERED FIT HOLDINGS, INC., a Florida
corporation,
Nominal Defendant.
i
PLAINTIFFS' RESPONSE IN OPPOSITION TO DEFENDANTS'
MOTION TO STRIKE
Defendants, CATERED FIT HOLDINGS, INC. and CATERED FIT CORP, CATERED
FIT SERVICES, INC, and ADAM FRIDEN (hereinafter"Defendants"),by and through the
undersignedcounsel and pursuant to Rule 1.140(b)ofthe Florida Rules ofCivil Procedure,hereby
file this Response in Opposition to JOSHUA PARDUE'S ("Plaintiff')
Reply and Motion to Strike
Defendants' Amended Affirmative Defenses ("Motion to Strike")and in support thereof states as
follows:
I.
INTRODUCTION
Plaintiff filed the instant complaint in a derivative capacityto distract from Defendants'
allegations
in the main and first filed action and avoid liability
for Plaintiff's numerous breaches
[2195339/ll
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 12/07/2021 05:39:50 PM.****
of duty, misappropriationof company funds, and general bad acts. Its unsurprisingthough.
Plaintiff has been accused of fraud and forgeryby a bank, has had adverse testimony from his
former accountant and third-party
arbitrator,
has had adverse testimonyfrom his former controller,
and has otherwise had his bad acts exposed. In this derivative action Plaintiff seeks damages for
an allegedbreach of fiduciaryduty, but inter alia fails to properly allegewhich Defendant
supposedly committed this breach and seeks damages where there are none.
In response, Defendants filed their joint Answers and Affirmative Defenses raising
numerous affirmative defenses. Thereafter,Plaintiff filed his first Motion to Strike Affirmative
Defenses and Defendants agreed to provide Plaintiff with amended affirmative defenses.
Defendant filed their Answers and Amended Affirmative Defenses to Defendants' Complaint.See
CATERED FIT HOLDINGS, INC. and CATERED FIT CORP, CATERED FIT SERVICES, INC,
and ADAM FRIDEN Answer and Amended Affirmative Defenses as Exhibit A. Defendants
amended their affirmative defenses to incorporateadditional allegationsof specificfacts,and
bolster the sufficiencyof the affirmative defenses. Plaintiff now seeks to strike fifteen (15) of
Defendants' affirmative defenses claiming either that (1)they are "denials" and not affirmative
defenses or (2) they do not include sufficient specificfactual allegations.
However, Plaintiff's
Motion to Strike is without merit,and must be denied.
II.
STANDARD ON A MOTION TO STRIKE AFFIRMATIVE DEFENSES
The legalinsufficiencyof a defense allegedin an answer or replyis attacked by a motion
to strike. Fla. R. Civ. P. 1.140(b).It is the counterpart of a motion to dismiss for failure to state a
cause of action directed to a pleadingseekingaffirmative relief. Tampa Suburban Utilities Corp.
v. HillsboroughCouno' Aviation Authoriot 195 So. 2d 568, 569 (Fla.2d DCA 1967).The elements
of a legaldefense are determined by substantive law in the same manner as the elements of a cause
of action. Roach v. Totalbank 85 So. 3d 574,578 (Fla.4th DCA 2012).As a matter of law, an
[2195339/ll
affirmative defense will only be held insufficient when it is apparent that the defendant cannot
succeed under any set of facts which it could prove. Equal Employment OpportunityCommission
v.
Universityof Miami, 2020 WL 2739177 at *2 (S.D. Fla. May 22, 2020) (citingEqual
Employment Opportunity Commissions v. First Nat. Bank of Jackson, 614 F. 2d 1004, 1008
(5?Cir- 1980).With respect to affirmative defenses,as long as the defense raises any legalor
factual issue,it would be error to strike it,regardlessof whether or not the pleaderwill ultimately
be able to support the defense with evidence. Gonzalez v. NAFH Nat. Bank, 93 So.3d 1054, 1057
rd
(Fla.3r DCA 2012) (citing
Pentecostal Holiness Church, Inc. v. Mauney, 170 So.2d 762, 769
(Fla.4.th DCA 1972. The proper remedy when a party mistakenlylabels a denial as an affirmative
defense is not to strike the claim but instead to treat it as a specificdenial. See EEOC v. U Of M,
2020 WL 2739177 at *3 (citingLugo v. Cocozella, LLC, 2012 WL 5986775, at *1 (S.D.Fla. Nov.
29,2012)).
III.
ARGUMENT
Plaintiff moves to strike Defendants' affirmative defenses of: full performance,unclean
hands, forgery,bad faith/frivolous pleading,priorbreach of contract, failure to state a claim,
separate statements, business judgment rule,justification,
set off,claimant's own conduct, direct
and derivative claims, speculativedamages, accord and satisfaction,and fraud. However, Plaintiff
cites only two (2) pieces of authorityin support of his arguments, which are largelylimited to
conclusorystatements that Plaintiff cannot respond to the defenses without additional facts or the
defense as pled is actuallya denial. Plaintiff's Motion to Strike fails on both arguments.
Defendants' affirmative defenses are pled with very specificfacts (oftenbroken down into separate
sub-paragraphsfor additional clarity)
and identifyspecificdefects in Plaintiff's Complaint (for
example, Plaintiff filed a single-countComplaint againstthree (3)defendants and one (1)nominal
defendant and failed to identifywhich defendant the claim is directed towards).Notwithstanding,
[2195339/ll
even if this Court determines that Plaintiffs' affirmative defenses are denials (theyare not)the
appropriateremedy is to treat them as specificdenials,and not to strike them. Lugo, 2012 WL
5986775, at *1.
IV.
CONCLUSION
For all the foregoingreasons, Plaintiff's Motion to Strike should be denied.
WHEREFORE, Defendants, CATERED FIT HOLDINGS, INC. and CATERED FIT
CORP, CATERED FIT SERVICES, INC, and ADAM FRIDEN respectfullyrequest this Court
enter an order denying Defendants' Motion to Strike,and awarding any further relief deemed just
and proper.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY the foregoingwas filed with the Florida Courts E-portalthis 7th
day of December, 2021, to Darryl R. Richards, Esq.
kerrir@jpfirm.com;
conniel@jpfirm.com) SunTrust Financial Centre, 401 E. Jackson Street, Suite 3100, Tampa,
Florida 33602.
ZEBERSKY PAYNE SHAW LEWENZ, LLP
110 S.E. 6-th Street,Suite 2900
Ft. Lauderdale, Florida 33301
Telephone: (954) 989-6333
Facsimile: (954) 989-7781
Primary Emails: jshaw@zpllp.com; kslaven@zpllp.com
Secondary Emails: mlomastro@zpllp.com
By-
/s/KimberW A. Slaven
Jordan A. Shaw, Esq.
Fla Bar No.. 111771
Kimberly A. Slaven, Esq.
Fla Bar No.: 117964
[2195339/ll
Exhibit A
Filing# 132508387 E-Filed 08/11/2021 06:54:45 PM
IN THE CIRCUIT COURT FOR THE 17th JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO- CACE -19-22558 (12)
JOSHUA PARDUE, an individual,derivatively
on behalf of CATERED FIT HOLDINGS, INC.
Plaintiff.
VS.
CATERED FIT CORP, a Florida corporation,
CATERED FIT SERVICES, INC.,
a Florida corporation,and ADAM FRIDEN, an
individual
Defendants,
and
CATERED FIT HOLDINGS, INC., a Florida
corporation,
Nominal Defendant.
i
DEFENDANTS' ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT
Comes now Defendants by and throughthe undersignedcounsel,hereby files their Answer
and Affirmative Defenses to Plaintiff Joshua Pardue's Complaint and in support thereof states as
follows:
General Allegations
1.
Defendants are without knowledge as to the allegationsin this paragraph,and
therefore deny them and demand strict proofthereof.
2.
Defendants admit the allegations
in this paragraph.
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1
3
Defendants deny the allegationsin this paragraph as worded, and demand strict
proofthereof.
4.
Defendants deny the allegationsin this paragraph and demand strict proof thereof.
5.
Defendants deny the allegations
in this paragraph and demand strict proofthereof.
6.
Defendants deny the allegations
in this paragraph and demand strict proofthereof.
7.
Defendants deny the allegationsin this paragraph, as worded, and demand strict
proofthereof.
8
Defendants deny the allegationsin this paragraph and demand strict proof thereof.
9-
Defendants deny the allegations
in this paragraph and demand strict proofthereof.
10.
Defendants admit the allegations
in this paragraph.
11.
Defendants admit the allegationsin this paragraph.
12.
Defendants deny the allegations
in this paragraph and demand strict proofthereof.
13.
Defendants deny the allegations
in this paragraph and demand strict proofthereof.
14.
Defendants deny the allegationsin this paragraph and demand strict proof thereof.
15.
Defendants deny the allegations
in this paragraph and demand strict proofthereof.
16.
Defendants deny the allegations
in this paragraph and demand strict proofthereof.
17.
Defendants admit the allegations
in this paragraph.
18.
Defendants deny the allegations
in this paragraphand demand strict proofthereof.
19.
Defendants admit the allegationsin this paragraph.
20.
To the extent this paragraphpurports to restate the Bylaws, Defendants state that
the Bylaws speak for themselves. All other allegations
in this paragraphare denied and Defendants
demand strict proof thereof.
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2
21.
To the extent this paragraph purports to restate the Bylaws, Defendants state that
the Bylaws speak for themselves. All other allegations
in this paragraphare denied and Defendants
demand strict proof thereof.
22.
Defendants admit the allegations
in this paragraph.
23.
Defendants deny the allegationsin this paragraph,as worded, and demand strict
proof thereof.
24.
Defendants deny the allegations
in this paragraphand demand strict proofthereof.
25.
Defendants deny the allegationsin this paragraph and demand strict proofthereof.
26.
Defendants deny the allegations
in this paragraph and demand strict proofthereof.
27.
Defendants deny the allegations
in this paragraphand demand strict proofthereof.
28.
Defendants deny the allegationsin this paragraph and demand strict proofthereof.
29.
Defendants deny the allegations
in this paragraph and demand strict proofthereof.
30.
Defendants deny the allegations
in this paragraph and demand strict proofthereof.
31.
Defendants deny the allegationsin this paragraph and demand strict proofthereof.
32.
Defendants deny the allegations
in this paragraph and demand strict proofthereof.
33.
Defendants deny the allegations
in this paragraph and demand strict proofthereof.
34.
Defendants deny the allegations
in this paragraph and demand strict proofthereof.
35.
Defendants deny the allegations
in this paragraphand demand strict proofthereof.
36.
Defendants deny the allegationsin this paragraph and demand strict proofthereof.
COUNTI
Breach of Fiduciarv Dutv
37.
Defendants deny the allegationsin this paragraph and demand strict proofthereof.
38.
Defendants deny the allegations
in this paragraph and demand strict proofthereof.
39.
Defendants deny the allegations
in this paragraphand demand strict proofthereof.
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3
40.
Defendants deny the allegations
in this paragraph and demand strict proofthereof.
41.
Defendants deny the allegations
in this paragraph and demand strict proofthereof.
42.
Defendants deny the allegationsin this paragraph and demand strict proofthereof.
43.
Defendants deny the allegations
in this paragraph and demand strict proofthereof.
44.
Defendants deny the allegations
in this paragraphand demand strict proofthereof.
45.
Defendants deny the allegationsin this paragraph and demand strict proofthereof.
46.
Defendants deny the allegations
in this paragraphand demand strict proofthereof.
47.
Defendants deny the allegationsin this paragraph and demand strict proofthereof.
48.
Defendants deny the allegations
in this paragraph and demand strict proofthereof.
AFFIRMATIVE DEFENSES
Full Performance
1.
Defendants have fullyperformed, satisfied,
and dischargedany and all duties and
obligationsto Plaintiffs. Specifically,
but without limitation,Defendants have complied in all
respects with the provisionsof the Shareholders' Agreement and has made any and all payments
due and owing to Pardue and/or Pardue Advisory under any and all agreements between them.
Plaintiff has been paid over $150,000.00 and have stolen an extra $80,150.00.
Repugnancy/Legal Impossibility
2.
Plaintiff's claims fail,in whole or in part, because the claims are repugnant to the
documents upon which they relyor are legalimpossibilities.
Plaintiff's claims are repugnant to the
Agreements upon which they are based, because Plaintiff makes allegations
that,inter alia, (1)
Defendants breached an oral amendment while attachinga written instrument that specifically
precludes any oral amendments and (2) Defendant Friden improperly bourht shares when the
[2150667/1]
4
Shareholders' Agreement (which is attached to the Complaint) only placesrestrictions on sellers
of shares.
Unclean Hands
3
Plaintiff's claims are barred,in whole or in part, by the doctrine of unclean hands.
Plaintiff engaged in misconduct through the misappropriationof company funds, multiple
breaches of the underlying agreements, and forged Defendant Friden's signatureon official bank
documents.
Forgery
4.
Plaintiff's claims are barred in whole or in part, because Plaintiff forged Friden's
signatureon official bank documents with American National Bank.
Bad Faith/Frivolous Pleading
5.
Plaintiff's claims fail,in whole or in part,because the claims are frivolous and made
in bad faith. Plaintiff knows that the allegationsof the Complaint are false,includingbut not
limited to:
a.
Plaintiff knows they are not owed compensation under the Consulting
Agreement due to its proper termination,
b.
Plaintiff knows they are not owed additional shares due to the Consulting
Agreement's proper termination,
c.
Plaintiff knows that the Consulting Agreement was properly terminated for
cause,
d.
Plaintiffknows that Pardue was properlyterminated as Chief Financial Officer
for cause,
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5
e.
Plaintiff knows that the alleged"deferral agreement" does not exist,and if it
did, does not comply with the requirementsof the ConsultingAgreement,
f.
Plaintiffknows that Friden's transfer ofhis own stock to his wife is a Permitted
Transfer under the Shareholder's Agreement,
Plaintiffknows
g.
that Friden bought Holding Company stock from a shareholder
and the Shareholder's Agreement only placesrestrictions on sellers ofHolding
Company stock and not purchasers,
h.
Plaintiff knows that the indemnification provision of the ByLaws does not
permit Counter-Plaintiffs to be indemnified for their own bad acts
i.
Plaintiff knows that they were not permittedto hire any employees on behalf
of Catered Fit,yet they hired Greg Macchia,
j. Plaintiffknows that Defendants did not pursue Plaintiff's proposedmerger and
acquisition
targets because they were not good investments for Catered Fit.
Prior Breach of Contract
6.
Plaintiff's claims fail,in whole or in part, because Plaintiff was party to and
breached the contract priorto any allegedbreaches by Defendants, which excused any further
performance.Specifically,
Plaintiffs utilized company funds for personaland business expenses
in breach of the ConsultingAgreement, forgedFriden's signatureon bank documents, incorrectly
calculated Catered Fit's sales taxes causing overpayment, and secretlyhired Greg Macchia on
behalf of Catered Fit in breach of the ConsultingAgreement and the Shareholders' Agreement,
before Plaintiff allegesDefendants breached their fiduciaryduties,before Plaintiff allegesthe
Consulting Agreement was improperly terminated, before Plaintiff allegeshe was improperly
[2150667/1]
6
terminated as CFO, and before Plaintiff alleges that Counter-Defendants breached the
Shareholders' Agreement.
Failure to State a Claim.
7.
Plaintiff's claims fail,in whole or in part, because Plaintiff has failed to state a
claim upon which relief can be granted.
a.
Plaintiff is not owed compensation under the ConsultingAgreement due to its
proper termination,
b.
Plaintiff is not owed additional shares due to the Consulting Agreement's
proper termination,
c.
the ConsultingAgreement was properlyterminated for cause,
d.
Pardue was properlyterminated as ChiefFinancial Officer for cause,
e.
the alleged"deferral agreement" does not exist,and if it did,does not comply
with the requirementsof the ConsultingAgreement,
f.
Friden's transfer of his own stock to his wife is a Permitted Transfer under the
Shareholder's Agreement,
Friden
g.
bought Holding Company stock from a shareholder and the
Shareholder's Agreement only places restrictions on sellers of Holding
Company stock and not purchasers,
h.
the indemnification provision of the ByLaws does not permit Counter-
Plaintiffs to be indemnified for their own bad acts
i.
Plaintiff was not permittedto hire any employees on behalf of Catered Fit,yet
they hired Greg Macchia,
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7
j. Defendants did not pursue Plaintiff' s proposed merger and acquisition
targets
because they were not good investments for Catered Fit.
Separate Statements
8
Florida law requiresthat [a]11averments of claim or defense shall be made in
consecutivelynumbered paragraphs,the contents of each of which shall be limited as far as
practicable
to a statement of a singleset of circumstances, and a paragraphmay be referred to by
number in all subsequentpleadings.Each claim founded upon a separate transaction or occurrence
and each defense other than denials shall be stated in a separate count or defense when a separation
facilitates the clear presentationof the matter set forth. Plaintiff lumped all Defendants into the
same count, making it near impossiblefor Counter-Plaintiffs to prove its case.
Business Judgment Rule
9-
Plaintiff's claims are barred in whole or in part, because Defendants made all
decisions and took all actions in accordance with the business judgment rule. At all times,
Defendants made decisions regarding,inter alia,Plaintiff and the termination of the Consulting
Agreement, his termination as CFO, and decisions to pursue acquisitiontargets, in good-faithand
in the best interests of the business[es].Plaintiff was making decisions that were detrimental to
Catered Fit,includingbut not limited to, jeopardizingthe S-Corp status by issuingHolding
Company stock to Greg Macchia, misusing and misappropriatingcompany funds, harassing,
mistreating,and mismanaging employees, mismanaging Catered Fit finances and taxes,
endangering Catered Fit's relationshipswith banks and lending institutions,and forging
documents.
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8
Justification
10.
Plaintiff's claims fail,in whole or in part,because Defendants were justified
in their
actions and performance. Defendants properly terminated the Consulting Agreement and any
payments due thereunder,properly terminated Pardue as CFO, and made decisions to forego
acquisition
targets suggestedby Pardue, based on Plaintiff's misappropriation
of company funds,
failure to properly calculate Catered Fit tax obligationscausing Catered Fit to overpay sales tax,
Plaintiff's hiring of employees on behalf of Catered Fit and issuingof stock to those same
employees without authorization,endangering Catered Fit's relationships
with banks and lending
institutions,forging documents, and Plaintiff's general failures to perform their duties
satisfactorily.
In addition,Defendants did not abide by the alleged"Deferral Agreement" because
even if it existed (itdoes not),it was not a valid and enforceable amendment to the Consulting
Agreement.
Setoff
11.
Plaintiff's claims fail in whole or in part, because to the extent Plaintiff is entitled
to any damages (he is not),Defendants are entitled to set-off all amounts Plaintiffowes Defendants
in the action by Defendants againstPlaintiff,includingbut not limited to, (1) any and all funds
misappropriatedby Plaintiffthroughhis use ofthe Catered Fit credit cards and accounts to pay for
personaland business expenses in violation of the ConsultingAgreement, (2)any and all sales tax
overpayments caused by Plaintiff,
(3) any and all damage caused to the Company by hiringand
issuingstock to Greg Macchia without authorization,and (4)attorneys'fees and costs.
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9
Claimants' own conduct
12.
Plaintiff's claims fail,in whole or in part,because ifPlaintiff suffered any damages,
those damages were caused by Plaintiff's own actions,internal policies,and procedures.Plaintiff's
own actions,includingbut not limited to, (1)Plaintiff's misappropriationof funds throughhis use
of the Catered Fit credit cards and accounts to pay for personaland business expenses in violation
of the Consulting Agreement, (2) Plaintiff's improper calculations leading to sales tax
overpayments, (3)Plaintiff's hiringof and issuingstock to Greg Macchia without authorization,
(4) endangering Catered Fit's relationships
with banks and lendinginstitutions,and (5)forging
documents caused his own damages, if any.
Direct Claims & Derivative Claims
13.
Plaintiff's claims fail in whole or in part,because Plaintiffis seekingdamages both
direetlyand derivativelyfor the same set of facts. In Catered Fit Holdings, Inc. et al v. Pardue
Advisory,LLC Case No. CACE 2019-17304 (7th
Jud. Cir.),Plaintiff has filed a Counterclaim
where he is seekingduplicativedamages for the same set of facts and allegationas raised in this
Complaint.
Damages are speculative.
14.
Plaintiff' s claims are barred, in whole or in part, because Plaintiff cannot prove
damages within a reasonable degree of certainty.
Damages are thus speculativeand impermissible.
Plaintiff cannot calculate what damages (ifany) were caused by the allegedimproper termination
of the ConsultingAgreement, the allegedimproper termination of Pardue as CFO, the alleged
Permitted Transfer to Ceinwen Harvey, the allegedimproper purchase of shares from Mark
Gerenger,the alleged"shareholder bonuses", or the allegedfailure to follow throughon Pardues'
merger and acquisitiontargets.
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10
Accord and Satisfaction
15.
Recovery is barred under the doctrine of accord and satisfaction. Plaintiff has
received all payments and shares he is entitled to under the Consulting Agreement and the
Shareholders' Agreement and there are no other amounts due and owing.
Anticipatory Repudiation
16.
Plaintiff's claims are barred, in whole or in part, by the doctrine of anticipatory
repudiation.Defendants made it very clear that the Consulting Agreement was terminated for
cause, that Pardue was terminated as CFO for cause, and they would no longerbe abidingby the
terms of the ConsultingAgreement or treatingPardue as the CFO.
Fraud
17.
Plaintiff's claims are barred,in whole or in part,because Plaintiff committed fraud
and other bad-acts that prevent recovery. Specifically,
but not limited to, Plaintiff misappropriated
Catered Fit funds in violation of the ConsultingAgreement, hired Greg Macchia on behalf of
Catered Fit in violation of the ConsultingAgreement, issued Holding Company stock to Greg
Macchia in violation ofthe Shareholders' Agreement, and forgedFriden's signaturein an attempt
to fraudulentlytransfer Catered Fit funds.
[THIS SPACE LEFT INTENTIONALLY BLANK]
[2150667/1]
11
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY the foregoingwas filed with the Florida Courts E-portalthis
11th day ofAugust, 2021, to Darryl R. Richards, Esq.
kerrir@jpfirm.com;
conniel@jpfirm.com) SunTrust Financial Centre, 401 E. Jackson Street, Suite 3100, Tampa,
Florida 33602.
ZEBERSKY PAYNE SHAW LEWENZ, LLP
110
th
S.E. 6I Street,Suite 2900
Ft. Lauderdale, Florida 33301
Telephone: (954) 989-6333
Facsimile: (954) 989-7781
Primary Emails: jshaw@zpllp.com; kslaven@zpllp.com
Secondary Emails: mlomastro@zpllp.com
By-/S/Jordan A. Shaw
JORDAN A. SHAW, ESQ.
Florida Bar No. 111771
KIMBERLY A. SLAVEN, ESQ.
Florida Bar No. 117964
[2150667/1]
12
Preview
Filing# 139907193 E-Filed 12/07/2021 05:39:51 PM IN THE CIRCUIT COURT FOR THE 17th JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO- CACE -19-22558 (12) JOSHUA PARDUE, an individual,derivatively on behalf of CATERED FIT HOLDINGS, INC. Plaintiff, VS. CATERED FIT CORP, a Florida corporation, CATERED FIT SERVICES, INC., a Florida corporation,and ADAM FRIDEN, an individual Defendants, and CATERED FIT HOLDINGS, INC., a Florida corporation, Nominal Defendant. i PLAINTIFFS' RESPONSE IN OPPOSITION TO DEFENDANTS' MOTION TO STRIKE Defendants, CATERED FIT HOLDINGS, INC. and CATERED FIT CORP, CATERED FIT SERVICES, INC, and ADAM FRIDEN (hereinafter"Defendants"),by and through the undersignedcounsel and pursuant to Rule 1.140(b)ofthe Florida Rules ofCivil Procedure,hereby file this Response in Opposition to JOSHUA PARDUE'S ("Plaintiff') Reply and Motion to Strike Defendants' Amended Affirmative Defenses ("Motion to Strike")and in support thereof states as follows: I. INTRODUCTION Plaintiff filed the instant complaint in a derivative capacityto distract from Defendants' allegations in the main and first filed action and avoid liability for Plaintiff's numerous breaches [2195339/ll *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 12/07/2021 05:39:50 PM.**** of duty, misappropriationof company funds, and general bad acts. Its unsurprisingthough. Plaintiff has been accused of fraud and forgeryby a bank, has had adverse testimony from his former accountant and third-party arbitrator, has had adverse testimonyfrom his former controller, and has otherwise had his bad acts exposed. In this derivative action Plaintiff seeks damages for an allegedbreach of fiduciaryduty, but inter alia fails to properly allegewhich Defendant supposedly committed this breach and seeks damages where there are none. In response, Defendants filed their joint Answers and Affirmative Defenses raising numerous affirmative defenses. Thereafter,Plaintiff filed his first Motion to Strike Affirmative Defenses and Defendants agreed to provide Plaintiff with amended affirmative defenses. Defendant filed their Answers and Amended Affirmative Defenses to Defendants' Complaint.See CATERED FIT HOLDINGS, INC. and CATERED FIT CORP, CATERED FIT SERVICES, INC, and ADAM FRIDEN Answer and Amended Affirmative Defenses as Exhibit A. Defendants amended their affirmative defenses to incorporateadditional allegationsof specificfacts,and bolster the sufficiencyof the affirmative defenses. Plaintiff now seeks to strike fifteen (15) of Defendants' affirmative defenses claiming either that (1)they are "denials" and not affirmative defenses or (2) they do not include sufficient specificfactual allegations. However, Plaintiff's Motion to Strike is without merit,and must be denied. II. STANDARD ON A MOTION TO STRIKE AFFIRMATIVE DEFENSES The legalinsufficiencyof a defense allegedin an answer or replyis attacked by a motion to strike. Fla. R. Civ. P. 1.140(b).It is the counterpart of a motion to dismiss for failure to state a cause of action directed to a pleadingseekingaffirmative relief. Tampa Suburban Utilities Corp. v. HillsboroughCouno' Aviation Authoriot 195 So. 2d 568, 569 (Fla.2d DCA 1967).The elements of a legaldefense are determined by substantive law in the same manner as the elements of a cause of action. Roach v. Totalbank 85 So. 3d 574,578 (Fla.4th DCA 2012).As a matter of law, an [2195339/ll affirmative defense will only be held insufficient when it is apparent that the defendant cannot succeed under any set of facts which it could prove. Equal Employment OpportunityCommission v. Universityof Miami, 2020 WL 2739177 at *2 (S.D. Fla. May 22, 2020) (citingEqual Employment Opportunity Commissions v. First Nat. Bank of Jackson, 614 F. 2d 1004, 1008 (5?Cir- 1980).With respect to affirmative defenses,as long as the defense raises any legalor factual issue,it would be error to strike it,regardlessof whether or not the pleaderwill ultimately be able to support the defense with evidence. Gonzalez v. NAFH Nat. Bank, 93 So.3d 1054, 1057 rd (Fla.3r DCA 2012) (citing Pentecostal Holiness Church, Inc. v. Mauney, 170 So.2d 762, 769 (Fla.4.th DCA 1972. The proper remedy when a party mistakenlylabels a denial as an affirmative defense is not to strike the claim but instead to treat it as a specificdenial. See EEOC v. U Of M, 2020 WL 2739177 at *3 (citingLugo v. Cocozella, LLC, 2012 WL 5986775, at *1 (S.D.Fla. Nov. 29,2012)). III. ARGUMENT Plaintiff moves to strike Defendants' affirmative defenses of: full performance,unclean hands, forgery,bad faith/frivolous pleading,priorbreach of contract, failure to state a claim, separate statements, business judgment rule,justification, set off,claimant's own conduct, direct and derivative claims, speculativedamages, accord and satisfaction,and fraud. However, Plaintiff cites only two (2) pieces of authorityin support of his arguments, which are largelylimited to conclusorystatements that Plaintiff cannot respond to the defenses without additional facts or the defense as pled is actuallya denial. Plaintiff's Motion to Strike fails on both arguments. Defendants' affirmative defenses are pled with very specificfacts (oftenbroken down into separate sub-paragraphsfor additional clarity) and identifyspecificdefects in Plaintiff's Complaint (for example, Plaintiff filed a single-countComplaint againstthree (3)defendants and one (1)nominal defendant and failed to identifywhich defendant the claim is directed towards).Notwithstanding, [2195339/ll even if this Court determines that Plaintiffs' affirmative defenses are denials (theyare not)the appropriateremedy is to treat them as specificdenials,and not to strike them. Lugo, 2012 WL 5986775, at *1. IV. CONCLUSION For all the foregoingreasons, Plaintiff's Motion to Strike should be denied. WHEREFORE, Defendants, CATERED FIT HOLDINGS, INC. and CATERED FIT CORP, CATERED FIT SERVICES, INC, and ADAM FRIDEN respectfullyrequest this Court enter an order denying Defendants' Motion to Strike,and awarding any further relief deemed just and proper. CERTIFICATE OF SERVICE WE HEREBY CERTIFY the foregoingwas filed with the Florida Courts E-portalthis 7th day of December, 2021, to Darryl R. Richards, Esq. kerrir@jpfirm.com; conniel@jpfirm.com) SunTrust Financial Centre, 401 E. Jackson Street, Suite 3100, Tampa, Florida 33602. ZEBERSKY PAYNE SHAW LEWENZ, LLP 110 S.E. 6-th Street,Suite 2900 Ft. Lauderdale, Florida 33301 Telephone: (954) 989-6333 Facsimile: (954) 989-7781 Primary Emails: jshaw@zpllp.com; kslaven@zpllp.com Secondary Emails: mlomastro@zpllp.com By- /s/KimberW A. Slaven Jordan A. Shaw, Esq. Fla Bar No.. 111771 Kimberly A. Slaven, Esq. Fla Bar No.: 117964 [2195339/ll Exhibit A Filing# 132508387 E-Filed 08/11/2021 06:54:45 PM IN THE CIRCUIT COURT FOR THE 17th JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO- CACE -19-22558 (12) JOSHUA PARDUE, an individual,derivatively on behalf of CATERED FIT HOLDINGS, INC. Plaintiff. VS. CATERED FIT CORP, a Florida corporation, CATERED FIT SERVICES, INC., a Florida corporation,and ADAM FRIDEN, an individual Defendants, and CATERED FIT HOLDINGS, INC., a Florida corporation, Nominal Defendant. i DEFENDANTS' ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT Comes now Defendants by and throughthe undersignedcounsel,hereby files their Answer and Affirmative Defenses to Plaintiff Joshua Pardue's Complaint and in support thereof states as follows: General Allegations 1. Defendants are without knowledge as to the allegationsin this paragraph,and therefore deny them and demand strict proofthereof. 2. Defendants admit the allegations in this paragraph. [2150667/1] 1 3 Defendants deny the allegationsin this paragraph as worded, and demand strict proofthereof. 4. Defendants deny the allegationsin this paragraph and demand strict proof thereof. 5. Defendants deny the allegations in this paragraph and demand strict proofthereof. 6. Defendants deny the allegations in this paragraph and demand strict proofthereof. 7. Defendants deny the allegationsin this paragraph, as worded, and demand strict proofthereof. 8 Defendants deny the allegationsin this paragraph and demand strict proof thereof. 9- Defendants deny the allegations in this paragraph and demand strict proofthereof. 10. Defendants admit the allegations in this paragraph. 11. Defendants admit the allegationsin this paragraph. 12. Defendants deny the allegations in this paragraph and demand strict proofthereof. 13. Defendants deny the allegations in this paragraph and demand strict proofthereof. 14. Defendants deny the allegationsin this paragraph and demand strict proof thereof. 15. Defendants deny the allegations in this paragraph and demand strict proofthereof. 16. Defendants deny the allegations in this paragraph and demand strict proofthereof. 17. Defendants admit the allegations in this paragraph. 18. Defendants deny the allegations in this paragraphand demand strict proofthereof. 19. Defendants admit the allegationsin this paragraph. 20. To the extent this paragraphpurports to restate the Bylaws, Defendants state that the Bylaws speak for themselves. All other allegations in this paragraphare denied and Defendants demand strict proof thereof. [2150667/1] 2 21. To the extent this paragraph purports to restate the Bylaws, Defendants state that the Bylaws speak for themselves. All other allegations in this paragraphare denied and Defendants demand strict proof thereof. 22. Defendants admit the allegations in this paragraph. 23. Defendants deny the allegationsin this paragraph,as worded, and demand strict proof thereof. 24. Defendants deny the allegations in this paragraphand demand strict proofthereof. 25. Defendants deny the allegationsin this paragraph and demand strict proofthereof. 26. Defendants deny the allegations in this paragraph and demand strict proofthereof. 27. Defendants deny the allegations in this paragraphand demand strict proofthereof. 28. Defendants deny the allegationsin this paragraph and demand strict proofthereof. 29. Defendants deny the allegations in this paragraph and demand strict proofthereof. 30. Defendants deny the allegations in this paragraph and demand strict proofthereof. 31. Defendants deny the allegationsin this paragraph and demand strict proofthereof. 32. Defendants deny the allegations in this paragraph and demand strict proofthereof. 33. Defendants deny the allegations in this paragraph and demand strict proofthereof. 34. Defendants deny the allegations in this paragraph and demand strict proofthereof. 35. Defendants deny the allegations in this paragraphand demand strict proofthereof. 36. Defendants deny the allegationsin this paragraph and demand strict proofthereof. COUNTI Breach of Fiduciarv Dutv 37. Defendants deny the allegationsin this paragraph and demand strict proofthereof. 38. Defendants deny the allegations in this paragraph and demand strict proofthereof. 39. Defendants deny the allegations in this paragraphand demand strict proofthereof. [2150667/1] 3 40. Defendants deny the allegations in this paragraph and demand strict proofthereof. 41. Defendants deny the allegations in this paragraph and demand strict proofthereof. 42. Defendants deny the allegationsin this paragraph and demand strict proofthereof. 43. Defendants deny the allegations in this paragraph and demand strict proofthereof. 44. Defendants deny the allegations in this paragraphand demand strict proofthereof. 45. Defendants deny the allegationsin this paragraph and demand strict proofthereof. 46. Defendants deny the allegations in this paragraphand demand strict proofthereof. 47. Defendants deny the allegationsin this paragraph and demand strict proofthereof. 48. Defendants deny the allegations in this paragraph and demand strict proofthereof. AFFIRMATIVE DEFENSES Full Performance 1. Defendants have fullyperformed, satisfied, and dischargedany and all duties and obligationsto Plaintiffs. Specifically, but without limitation,Defendants have complied in all respects with the provisionsof the Shareholders' Agreement and has made any and all payments due and owing to Pardue and/or Pardue Advisory under any and all agreements between them. Plaintiff has been paid over $150,000.00 and have stolen an extra $80,150.00. Repugnancy/Legal Impossibility 2. Plaintiff's claims fail,in whole or in part, because the claims are repugnant to the documents upon which they relyor are legalimpossibilities. Plaintiff's claims are repugnant to the Agreements upon which they are based, because Plaintiff makes allegations that,inter alia, (1) Defendants breached an oral amendment while attachinga written instrument that specifically precludes any oral amendments and (2) Defendant Friden improperly bourht shares when the [2150667/1] 4 Shareholders' Agreement (which is attached to the Complaint) only placesrestrictions on sellers of shares. Unclean Hands 3 Plaintiff's claims are barred,in whole or in part, by the doctrine of unclean hands. Plaintiff engaged in misconduct through the misappropriationof company funds, multiple breaches of the underlying agreements, and forged Defendant Friden's signatureon official bank documents. Forgery 4. Plaintiff's claims are barred in whole or in part, because Plaintiff forged Friden's signatureon official bank documents with American National Bank. Bad Faith/Frivolous Pleading 5. Plaintiff's claims fail,in whole or in part,because the claims are frivolous and made in bad faith. Plaintiff knows that the allegationsof the Complaint are false,includingbut not limited to: a. Plaintiff knows they are not owed compensation under the Consulting Agreement due to its proper termination, b. Plaintiff knows they are not owed additional shares due to the Consulting Agreement's proper termination, c. Plaintiff knows that the Consulting Agreement was properly terminated for cause, d. Plaintiffknows that Pardue was properlyterminated as Chief Financial Officer for cause, [2150667/1] 5 e. Plaintiff knows that the alleged"deferral agreement" does not exist,and if it did, does not comply with the requirementsof the ConsultingAgreement, f. Plaintiffknows that Friden's transfer ofhis own stock to his wife is a Permitted Transfer under the Shareholder's Agreement, Plaintiffknows g. that Friden bought Holding Company stock from a shareholder and the Shareholder's Agreement only placesrestrictions on sellers ofHolding Company stock and not purchasers, h. Plaintiff knows that the indemnification provision of the ByLaws does not permit Counter-Plaintiffs to be indemnified for their own bad acts i. Plaintiff knows that they were not permittedto hire any employees on behalf of Catered Fit,yet they hired Greg Macchia, j. Plaintiffknows that Defendants did not pursue Plaintiff's proposedmerger and acquisition targets because they were not good investments for Catered Fit. Prior Breach of Contract 6. Plaintiff's claims fail,in whole or in part, because Plaintiff was party to and breached the contract priorto any allegedbreaches by Defendants, which excused any further performance.Specifically, Plaintiffs utilized company funds for personaland business expenses in breach of the ConsultingAgreement, forgedFriden's signatureon bank documents, incorrectly calculated Catered Fit's sales taxes causing overpayment, and secretlyhired Greg Macchia on behalf of Catered Fit in breach of the ConsultingAgreement and the Shareholders' Agreement, before Plaintiff allegesDefendants breached their fiduciaryduties,before Plaintiff allegesthe Consulting Agreement was improperly terminated, before Plaintiff allegeshe was improperly [2150667/1] 6 terminated as CFO, and before Plaintiff alleges that Counter-Defendants breached the Shareholders' Agreement. Failure to State a Claim. 7. Plaintiff's claims fail,in whole or in part, because Plaintiff has failed to state a claim upon which relief can be granted. a. Plaintiff is not owed compensation under the ConsultingAgreement due to its proper termination, b. Plaintiff is not owed additional shares due to the Consulting Agreement's proper termination, c. the ConsultingAgreement was properlyterminated for cause, d. Pardue was properlyterminated as ChiefFinancial Officer for cause, e. the alleged"deferral agreement" does not exist,and if it did,does not comply with the requirementsof the ConsultingAgreement, f. Friden's transfer of his own stock to his wife is a Permitted Transfer under the Shareholder's Agreement, Friden g. bought Holding Company stock from a shareholder and the Shareholder's Agreement only places restrictions on sellers of Holding Company stock and not purchasers, h. the indemnification provision of the ByLaws does not permit Counter- Plaintiffs to be indemnified for their own bad acts i. Plaintiff was not permittedto hire any employees on behalf of Catered Fit,yet they hired Greg Macchia, [2150667/1] 7 j. Defendants did not pursue Plaintiff' s proposed merger and acquisition targets because they were not good investments for Catered Fit. Separate Statements 8 Florida law requiresthat [a]11averments of claim or defense shall be made in consecutivelynumbered paragraphs,the contents of each of which shall be limited as far as practicable to a statement of a singleset of circumstances, and a paragraphmay be referred to by number in all subsequentpleadings.Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense when a separation facilitates the clear presentationof the matter set forth. Plaintiff lumped all Defendants into the same count, making it near impossiblefor Counter-Plaintiffs to prove its case. Business Judgment Rule 9- Plaintiff's claims are barred in whole or in part, because Defendants made all decisions and took all actions in accordance with the business judgment rule. At all times, Defendants made decisions regarding,inter alia,Plaintiff and the termination of the Consulting Agreement, his termination as CFO, and decisions to pursue acquisitiontargets, in good-faithand in the best interests of the business[es].Plaintiff was making decisions that were detrimental to Catered Fit,includingbut not limited to, jeopardizingthe S-Corp status by issuingHolding Company stock to Greg Macchia, misusing and misappropriatingcompany funds, harassing, mistreating,and mismanaging employees, mismanaging Catered Fit finances and taxes, endangering Catered Fit's relationshipswith banks and lending institutions,and forging documents. [2150667/1] 8 Justification 10. Plaintiff's claims fail,in whole or in part,because Defendants were justified in their actions and performance. Defendants properly terminated the Consulting Agreement and any payments due thereunder,properly terminated Pardue as CFO, and made decisions to forego acquisition targets suggestedby Pardue, based on Plaintiff's misappropriation of company funds, failure to properly calculate Catered Fit tax obligationscausing Catered Fit to overpay sales tax, Plaintiff's hiring of employees on behalf of Catered Fit and issuingof stock to those same employees without authorization,endangering Catered Fit's relationships with banks and lending institutions,forging documents, and Plaintiff's general failures to perform their duties satisfactorily. In addition,Defendants did not abide by the alleged"Deferral Agreement" because even if it existed (itdoes not),it was not a valid and enforceable amendment to the Consulting Agreement. Setoff 11. Plaintiff's claims fail in whole or in part, because to the extent Plaintiff is entitled to any damages (he is not),Defendants are entitled to set-off all amounts Plaintiffowes Defendants in the action by Defendants againstPlaintiff,includingbut not limited to, (1) any and all funds misappropriatedby Plaintiffthroughhis use ofthe Catered Fit credit cards and accounts to pay for personaland business expenses in violation of the ConsultingAgreement, (2)any and all sales tax overpayments caused by Plaintiff, (3) any and all damage caused to the Company by hiringand issuingstock to Greg Macchia without authorization,and (4)attorneys'fees and costs. [2150667/1] 9 Claimants' own conduct 12. Plaintiff's claims fail,in whole or in part,because ifPlaintiff suffered any damages, those damages were caused by Plaintiff's own actions,internal policies,and procedures.Plaintiff's own actions,includingbut not limited to, (1)Plaintiff's misappropriationof funds throughhis use of the Catered Fit credit cards and accounts to pay for personaland business expenses in violation of the Consulting Agreement, (2) Plaintiff's improper calculations leading to sales tax overpayments, (3)Plaintiff's hiringof and issuingstock to Greg Macchia without authorization, (4) endangering Catered Fit's relationships with banks and lendinginstitutions,and (5)forging documents caused his own damages, if any. Direct Claims & Derivative Claims 13. Plaintiff's claims fail in whole or in part,because Plaintiffis seekingdamages both direetlyand derivativelyfor the same set of facts. In Catered Fit Holdings, Inc. et al v. Pardue Advisory,LLC Case No. CACE 2019-17304 (7th Jud. Cir.),Plaintiff has filed a Counterclaim where he is seekingduplicativedamages for the same set of facts and allegationas raised in this Complaint. Damages are speculative. 14. Plaintiff' s claims are barred, in whole or in part, because Plaintiff cannot prove damages within a reasonable degree of certainty. Damages are thus speculativeand impermissible. Plaintiff cannot calculate what damages (ifany) were caused by the allegedimproper termination of the ConsultingAgreement, the allegedimproper termination of Pardue as CFO, the alleged Permitted Transfer to Ceinwen Harvey, the allegedimproper purchase of shares from Mark Gerenger,the alleged"shareholder bonuses", or the allegedfailure to follow throughon Pardues' merger and acquisitiontargets. [2150667/1] 10 Accord and Satisfaction 15. Recovery is barred under the doctrine of accord and satisfaction. Plaintiff has received all payments and shares he is entitled to under the Consulting Agreement and the Shareholders' Agreement and there are no other amounts due and owing. Anticipatory Repudiation 16. Plaintiff's claims are barred, in whole or in part, by the doctrine of anticipatory repudiation.Defendants made it very clear that the Consulting Agreement was terminated for cause, that Pardue was terminated as CFO for cause, and they would no longerbe abidingby the terms of the ConsultingAgreement or treatingPardue as the CFO. Fraud 17. Plaintiff's claims are barred,in whole or in part,because Plaintiff committed fraud and other bad-acts that prevent recovery. Specifically, but not limited to, Plaintiff misappropriated Catered Fit funds in violation of the ConsultingAgreement, hired Greg Macchia on behalf of Catered Fit in violation of the ConsultingAgreement, issued Holding Company stock to Greg Macchia in violation ofthe Shareholders' Agreement, and forgedFriden's signaturein an attempt to fraudulentlytransfer Catered Fit funds. [THIS SPACE LEFT INTENTIONALLY BLANK] [2150667/1] 11 CERTIFICATE OF SERVICE WE HEREBY CERTIFY the foregoingwas filed with the Florida Courts E-portalthis 11th day ofAugust, 2021, to Darryl R. Richards, Esq. kerrir@jpfirm.com; conniel@jpfirm.com) SunTrust Financial Centre, 401 E. Jackson Street, Suite 3100, Tampa, Florida 33602. ZEBERSKY PAYNE SHAW LEWENZ, LLP 110 th S.E. 6I Street,Suite 2900 Ft. Lauderdale, Florida 33301 Telephone: (954) 989-6333 Facsimile: (954) 989-7781 Primary Emails: jshaw@zpllp.com; kslaven@zpllp.com Secondary Emails: mlomastro@zpllp.com By-/S/Jordan A. Shaw JORDAN A. SHAW, ESQ. Florida Bar No. 111771 KIMBERLY A. SLAVEN, ESQ. Florida Bar No. 117964 [2150667/1] 12