Preview
Filing # 70985941 E-Filed 04/19/2018 05:23:38 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
MOBOOKA, LLC, a Florida limited liability
company, CASE NO.: 2017-CA-004043
Plaintiff,
v.
JOHN HANCOCK, et. al.,
Defendants.
_________________________________/
PLAINTIFF’S MOTION FOR SANCTIONS
COMES NOW, the Plaintiff, MOBOOKA, LLC, by and through its undersigned counsel,
and files this Motion for Sanctions against Defendants JOHN HANCOCK (“Hancock”) and
FORSA LLC (“Forsa”)(collectively, “Defendants”) and states as follows:
I. BACKGROUND
1. On May 1, 2017, the Plaintiff filed its Complaint against the Defendants.
2. Service was obtained upon Defendant Hancock on May 23, 2017.
3. Service was obtained upon Defendant Forsa by serving its registered agent on May
26, 2017.
4. The deadline for Defendant Hancock to file a responsive pleading was June 12,
2017. The deadline for Defendant Forsa to file a responsive pleading was June 15, 2017.
5. On May 26, 2017, a Notice of Appearance was filed by Defendant’s counsel, and
on May 30, 2017, both parties appeared at a hearing on Plaintiff’s Verified Emergency Motion for
Ex Parte Temporary Injunction.
6. On June 12, 2017, Defendants filed a Motion for Extension of Time to Respond to
Plaintiff’s Complaint, requesting a twenty (20) day extension. Defendants’ counsel made no
Motion for Sanctions
Case No.: 2017-CA-004043
attempts to confer with the undersigned regarding the extension, nor was an agreed order discussed
until the undersigned contacted Defendants’ counsel on June 26, 2017 to inquire on the status of
their motion.
7. Defendants’ counsel made no attempts to submit a proposed order to the court or
coordinate a hearing on their Motion for Extension of Time. Furthermore, this Honorable Court
did not enter an order granting Defendant’s Motion for Extension of Time to Respond to Plaintiff’s
Complaint.
8. On July 10, 2017, Defendants’ counsel expressed to Plaintiff’s counsel that a
response would be filed by the end of week, however no response was filed.
9. Plaintiff filed a Motion for Default on July 18, 2017, and a hearing was scheduled
for December 7, 2017 at 1:45 pm.
10. In the interim, the Defendants failed to file a responsive pleading or motion, until
on December 7, at 12:30 pm, Defendants filed a Motion to Dismiss. A true and correct copy of
Defendant’s Motion is attached hereto as Exhibit “A.”
11. While the Court denied Plaintiff’s Motion for Default, it reserved ruling with
respect to sanctioning Defendants.
II. ARGUMENT
12. The Court should sanction Defendants based upon their uncooperative and dilatory
conduct.
13. While the entry of a default is prohibited where an answer or response is filed before
the default is entered, even though the answer may have been untimely, See Ingaglio v. Ennis, 443
So.2d 459 (Fla. 4th DCA 1984); Chester, Blackburn & Roder, Inc. v. Marchese, 383 So.2d 734
(Fla. 3d DCA 1980), this does not preclude the imposition of sanctions besides default for a
Page 2 of 4
EPGD Business Law
777 SW 37th Ave., Ste. 510, Miami, FL 33135 • T: (786) 837-6787 • F: (305) 718-0687 • www.epgdlaw.com
Motion for Sanctions
Case No.: 2017-CA-004043
respondent’s dilatory conduct. Marchese, at 735 n. 4.
14. Here, Defendants’ conduct has been especially delaying by waiting for
approximately half a year to file a response, knowing that a Motion for Default was pending.
15. While Defendants had approximately six months to file a responsive pleading or
motion, Defendants merely filed a Motion for Extension of Time to respond to the Complaint, and
even then, made no effort to schedule said motion for hearing or to coordinate an agreed order
with Plaintiff.
16. Additionally, although Defendants’ counsel stated that a response would be filed
by the end of the week of July 14, 2017, Defendants did not file a response until December 7,
2017, approximately one hour before the hearing scheduled on Plaintiff’s Motion for Default.
17. Therefore, this Court should sanction Defendants in the form of attorneys’ fees and
costs, including, but not limited to, those fees expended by Plaintiff for anything related to
Defendant’s Motion for Extension of Time and Plaintiff’s Motion for Default, including the
hearing thereof.
18. In fact, the Court admonished Defendant during the December 7 hearing and stated
that Defendant’s delay was inexcusable.
WHEREFORE, the Plaintiff, Mobooka, LLC, respectfully requests that this Honorable
Court sanction Defendants, John Hancock and Forsa LLC, in the form of attorney’s fees and costs,
and for such further relief as this Court deems just and proper.
[This Section Intentionally Left Blank – Certificate of Service Follows]
Page 3 of 4
EPGD Business Law
777 SW 37th Ave., Ste. 510, Miami, FL 33135 • T: (786) 837-6787 • F: (305) 718-0687 • www.epgdlaw.com
Motion for Sanctions
Case No.: 2017-CA-004043
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by email
this 19th day of April, 2018 to Patrick Willis, Esq. (pwillis@willisoden.com) and Christopher
Bertels, Esq. (cbertels@willisoden.com), Willis & Oden, Counsel for Defendants, John Hancock
and Forsa, LLC.
Respectfully submitted,
EPGD BUSINESS LAW
Counsel for Plaintiff
777 SW 37th Ave., Ste. 510
Miami, FL 33135
T: (786) 837-6787 | F: (305) 718-0687
sam@epgdlaw.com
By: /s/ Samuel J. Gittle
Samuel J Gittle, Esq.
Florida Bar No. : 099778
Elizabeth M. Fernandez, Esq.
Florida Bar No.: 118657
Page 4 of 4
EPGD Business Law
777 SW 37th Ave., Ste. 510, Miami, FL 33135 • T: (786) 837-6787 • F: (305) 718-0687 • www.epgdlaw.com
Exhibit “A”
Filing # 65095591 E-Filed 12/07/2017 12:30:27 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
MOBOOKA, LLC, a Florida limited liability
company,
CASE NO.: 2017-CA-004043
Plaintiff,
v.
JOHN HANCOCK, et al.,
Defendants.
_____________________________________/
MOTION TO DISMISS COMPLAINT OR ALTERNATIVELY, MOTION
FOR MORE DEFINITE STATEMENT
Defendants, JOHN HANCOCK (“Mr. Hancock”) and FORSA, LLC (“Forsa”),
by and through the undersigned counsel, hereby file their Motion to Dismiss
Plaintiff’s Complaint or Alternatively, Motion for More Definite Statement and state:
1. Plaintiff, MOBOOKA, LLC, (“Mobooka”), has filed a seven (7) count
Complaint against the Defendants. As more fully explained in this motion all of these
counts are legally insufficient and should be dismissed.1 Alternatively, Defendants
would ask that the Court require Plaintiff to provide a more definite statement.
1 Defendants also wish to make it clear that they completely and utterly dispute the allegations
which are outrageous fabrications by Mobooka’s owner, Steve Howe. Defendants’ would also like
to point out that it is not a coincidence that Steve Howe did not sign the verification for the
Complaint or the police report (which never resulted in any charges against Mr. Hancock). Instead
he had one of his employees sign both so that he could avoid committing perjury. It is also not a
coincidence that no exhibits were attached to the complaint corroborating Plaintiff’s allegations and
that the key outsider witness, the “Chief Executive Officer of a competitor network” is not
identified nor is the company that this person purportedly runs. Defendants intend to demonstrate
A. Standard of Review for a Motion to Dismiss
When confronted with a motion to dismiss, a court must determine whether the
complaint, as phrased within its four corners, sufficiently states a cause of action
whereby relief can be granted. See Fox v. Professional Wrecker Operators, Inc., 801
So. 2d 175, 178 (Fla. 5th DCA 2001). The purpose of a motion to dismiss is to test
the legal sufficiency of the complaint. See Pacific Ins. Co., Ltd. v. Bothello, 891
So.2d 587 (Fla. 3d DCA 2004). Pursuant to Florida Rule of Civil Procedure 1.110,
the Complaint must set forth a short and plain statement of the ultimate facts showing
entitlement to relief. The complaint must set out the elements and the facts that
support them so that the court and the defendant can clearly determine what is being
alleged. See Messana v. Maule Indus., 50 So.2d 874, 876 (Fla.1951) (a complainant
must “plead [a] factual matter sufficient to apprise his adversary of what he is called
upon to answer so that the court may, upon proper challenge, determine its legal
effect.”). “Bare conclusions are insufficient, and pleadings must be stated with
sufficient particularity to permit the preparation of a defense.” Arky Freed v.
Bowman Instrument Corp., 537 So.2d 561, 563 (Fla. 1988); Beckler v. Hoffman, 550
So.2d 69, 70 (Fla. 5th DCA 1989). It is insufficient to plead opinions, theories, legal
conclusions or argument. Barrett v. City of Margate, 743 So. 2d 1160, 1163 (Fla.
Dist. Ct. App. 1999).
that Plaintiff and Mr. Howe have committed a fraud on the court by alleging facts that are entirely
false and untrue.
2
B. Planitiff’s Claims for Injunctive Relief (Count I) and Replevin
(Count II) Are Both Legally Insufficient.
Under Florida case law, injunctive relief and the cause of action of replevin are
both not available remedies to recovery money damages. See Williams Management
Enterprises, Inc. v. Buonauro, 489 So. 2d 160, 168 (Fla. 5th DCA 1986); See also
Hiles v. Auto Bahn Federation, Inc., 498 So. 2d 997, 998 (Fla 4th DCA 1986). In the
Williams Management Enterprises, Inc., decision, the Fifth DCA concluded that
money constitutes intangible and fungible property that cannot be recovered through
an action for replevin. See Williams Management Enterprises, Inc., 489 So. 2d at
168. Similarly, in the Hiles decision, the Court expressly held that “Injunctive relief
may not be used to enforce money damages, or to prevent any party from disposing
of assets until an action at law for an alleged debt can be concluded.” Hiles, 498 So.
2d at 998.
A party seeking injunctive relief must establish the following elements:
1) irreparable harm; 2) a clear legal right; 3) an inadequate remedy at law; 4)
consideration of the public interest. Id. The Hiles Court expressly held that the loss of
money does not constitute irreparable harm and also that an adequate remedy of law
would exist for such a claim. Id. The Court further concluded that injunctive relief
must be denied where the alleged justification is to “prevent an alleged dissipation of
corporate assets.” Id. at 999. “The possibility that a money judgment, once obtained,
will not be collectible is irrelevant under the test of inadequacy of remedy at law….
3
Thus, injunctive relief was error because there was no showing of irreparable harm or
lack of an adequate remedy at law.” Id. Based on the cases cited herein, Plaintiff’s
Injunctive Relief (Count I) and Replevin (Count II) claims should be dismissed with
prejudice.
C. Plaintiff’s Have Failed to Satisfy a Condition Precedent to Filing a
Civil Theft Claim (Counts VI and VII)
The cause of action of civil theft is created by Section 772.11, Florida Statutes.
Plaintiff has alleged the cause of action of “theft” under Count VI, however, there is
no private cause of action for theft other than under Section 772.11. Therefore,
Count VI is redundant and should be dismissed with prejudice. Section 772.11
clearly provides that “Before filing an action for damages under this section, the
person claiming injury must make a written demand for $200 or the treble damage
amount of the person liable for damages under this section.” Plaintiff has not alleged
that any such presuit demand occurred and therefore, has failed to satisfy a condition
precedent to the filing of any civil theft claim.
Plaintiff has also failed to attach any presuit demand under the civil theft
statute to its complaint and therefore, has also failed to comply with Fla R. Civ. P.,
Rule 1.130 which provides as follows:
(a) Instruments Attached. All Bonds, Notes, bills of Exchange, contracts,
accounts, or documents upon which action may be brought or defense made, or
a copy thereof or a copy of the portions thereof material to the pleadings, shall
be incorporated in or attached to the pleading.
4
The pleading requirement of Rule 1.130 clearly requires a plaintiff to attach to the
Complaint any documents upon which its action may be brought. See Conklin v.
Cohen, 287 So. 2d 56, 60 (Fla. 1973); See also Jeff-Ray Corp. v. Jacobson, 566 So.
2d 885, 886 (Fla. 4th DCA 1990); See also Hughes v. Home Savings of America, 675
So.2d 649, 649-651 (Fla. 2d DCA 1996). “Moreover, it is the responsibility of the
plaintiff to provide to the court any documents upon which his alleged cause of action
is based.” Winn-Dixie Stores, Inc., v. Sams, 281 So.2d 47, 47-48 (Fla. 3d DCA
1973). For these reasons, both Counts VI and VII should be dismissed as well.
D. Plaintiff’s Allegations in Support of Its Cause of Action for Tortious
Interference (Counts IV) Are Legally Insufficient.
Plaintiff’s has asserted a claim for “Tortious Interference with a Prospective
Economic Advantage” i.e., tortious interference with a business relationship or a
contract. However, Plaintiff has failed to allege sufficient facts to demonstrate the
existence of such a relationship or any contractual rights as required by Fla. R. Civ. P.
1.110. Additionally, to the extent that Plaintiff is asserting that a contractual right
was tortiously interfered with, any such contract would be required to be attached to
the Complaint pursuant to Fla. R. Civ. P. 1.130. For these reasons, Plaintiff’s claim
should be dismissed. Alternatively, Plaintiff should be required to provide a more
definite statement.
5
E. Plaintiff’s Allegations in Support of Its Breach of Duty of Loyalty
Claim (Count V) Are Legally Insufficient.
Plaintiff’s allegations in Support of Its Breach of Duty of Loyalty Claim fail to
meet the standard required by Fla. R. Civ. P. 1.110 and are therefore, legally
insufficient. Plaintiff makes a number of vague and conclusory references to the
misappropriation of trade secrets and other information but never really alleges
sufficient facts for the Defendants to understand exactly what the Defendants are
claiming that occurred. A complainant must “plead [a] factual matter sufficient to
apprise his adversary of what he is called upon to answer so that the court may, upon
proper challenge, determine its legal effect. Messana v. Maule Indus., 50 So.2d 874,
876 (Fla.1951) “Bare conclusions are insufficient, and pleadings must be stated with
sufficient particularity to permit the preparation of a defense.” Arky Freed v.
Bowman Instrument Corp., 537 So.2d 561, 563 (Fla. 1988); Beckler v. Hoffman, 550
So.2d 69, 70 (Fla. 5th DCA 1989). It is insufficient to plead opinions, theories, legal
conclusions or argument. Barrett v. City of Margate, 743 So. 2d 1160, 1163 (Fla.
Dist. Ct. App. 1999). For these reasons, Count V should be dismissed as well or or
alternatively, Plaintiff should be required to provide a more definite statement of its
claim.
F. Plaintiff’s Allegations in Support of Its Action for Violation of the
Florida Uniform Trade Secrets Act (Counts III) Are Legally
Insufficient.
6
Plaintiff has alleged that Defendants Violated the Florida Uniform Trade
Secrets Action (Count III) yet Plaintiff has not alleged the misappropriation of any
information that would actually constitute a trade secret. A trade secret is defined
under Section 688.002, Florida Statutes as follows:
“Trade secret” means information, including a formula, pattern,
compilation, program, device, method, technique, or process that:
(a) Derives independent economic value, actual or potential, from not
being generally known to, and not being readily ascertainable by
proper means by, other persons who can obtain economic value
from its disclosure or use; and
(b) Is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
Plaintiffs allegations in support of this claim consist almost entirely of conclusory
assertions. However, it appears that the “trade secrets” being referenced are access
codes or passwords, which do not meet the definition provided for in Section
688.002. Plaintiff references “client lists” as well, yet there is no allegation that
Defendants have attempted to solicit any clients from Mobooka and therefore,
Plaintiff hasn’t alleged sufficient facts in support of any theory that any client lists
were misappropriated. Plaintiff also makes the legally conclusory assertion that
“proprietary business system information” has been misappropriated yet does layout
any facts in support of this allegation and therefore, also fail to satisfy the pleading
requirement of Fla. R. Civ. P. 1.110.
7
As best as Defendants can tell, Plaintiffs are referring to access codes or
passwords as the “trade secrets”. Yet access codes and passwords don’t have any
independent value and therefore, don’t meet the definition of a trade secret provided
for in Section 688.002. Also, there is no allegation that any other person could obtain
economic advantage from the use of passwords and access codes that presumably
have already been changed. Nor is there an allegation that these competitors, would
be able to remotely log into Plaintiffs system even if for some reason Plaintiff had
failed to take the basis security measure of changing these codes. For these reasons
Plaintiffs’ cause of action should be dismissed or alternatively, Plaintiff should be
required to provide a more definite statement of its claim.
Defendants have retained the services of the undersigned counsel and law firm
and have been required to pay a reasonable fee for their services. Defendants are
entitled to be reimbursed by the Plaintiff for all attorneys’ fees and costs incurred in
this litigation.
WHEREFORE, Defendants, JOHN HANCOCK and FORSA, LLC,
respectfully request this Honorable Court dismiss Plaintiff’s Complaint or
alternatively, require Plaintiff to provide a more definite statement of its claims.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished
via eFiling, Email and/or U.S. Mail to: Elizabeth Fernandez, Esq., EPGD BUSINESS
LAW, 2701 Ponce De Leon Blvd., Ste. 202, Coral Gables, FL 33034 –
elizabeth@epgdlaw.com, oscar@epgdlaw.com, paralegal@epgdlaw.com, on this 7th
day of December, 2017.
8
/s/ Patrick H. Willis
PATRICK H. WILLIS, Esquire
Florida Bar No. 526665
Primary Email: pwillis@willisoden.com
CHRISTOPHER BERTELS, Esquire
Florida Bar No. 98267
Secondary Email: cbertels@willisoden.com
WILLIS & ODEN
2121 S. Hiawassee Rd, Suite 116
Orlando, FL 32835
Telephone No. 407-903-9939
Facsimile No. 407-903-9929
Attorneys for Defendants, JOHN HANCOCK
and FORSA LLC
Facsimile No. 407-903-9929
Attorneys for Defendants
9
Preview
Filing # 70985941 E-Filed 04/19/2018 05:23:38 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA MOBOOKA, LLC, a Florida limited liability company, CASE NO.: 2017-CA-004043 Plaintiff, v. JOHN HANCOCK, et. al., Defendants. _________________________________/ PLAINTIFF’S MOTION FOR SANCTIONS COMES NOW, the Plaintiff, MOBOOKA, LLC, by and through its undersigned counsel, and files this Motion for Sanctions against Defendants JOHN HANCOCK (“Hancock”) and FORSA LLC (“Forsa”)(collectively, “Defendants”) and states as follows: I. BACKGROUND 1. On May 1, 2017, the Plaintiff filed its Complaint against the Defendants. 2. Service was obtained upon Defendant Hancock on May 23, 2017. 3. Service was obtained upon Defendant Forsa by serving its registered agent on May 26, 2017. 4. The deadline for Defendant Hancock to file a responsive pleading was June 12, 2017. The deadline for Defendant Forsa to file a responsive pleading was June 15, 2017. 5. On May 26, 2017, a Notice of Appearance was filed by Defendant’s counsel, and on May 30, 2017, both parties appeared at a hearing on Plaintiff’s Verified Emergency Motion for Ex Parte Temporary Injunction. 6. On June 12, 2017, Defendants filed a Motion for Extension of Time to Respond to Plaintiff’s Complaint, requesting a twenty (20) day extension. Defendants’ counsel made no Motion for Sanctions Case No.: 2017-CA-004043 attempts to confer with the undersigned regarding the extension, nor was an agreed order discussed until the undersigned contacted Defendants’ counsel on June 26, 2017 to inquire on the status of their motion. 7. Defendants’ counsel made no attempts to submit a proposed order to the court or coordinate a hearing on their Motion for Extension of Time. Furthermore, this Honorable Court did not enter an order granting Defendant’s Motion for Extension of Time to Respond to Plaintiff’s Complaint. 8. On July 10, 2017, Defendants’ counsel expressed to Plaintiff’s counsel that a response would be filed by the end of week, however no response was filed. 9. Plaintiff filed a Motion for Default on July 18, 2017, and a hearing was scheduled for December 7, 2017 at 1:45 pm. 10. In the interim, the Defendants failed to file a responsive pleading or motion, until on December 7, at 12:30 pm, Defendants filed a Motion to Dismiss. A true and correct copy of Defendant’s Motion is attached hereto as Exhibit “A.” 11. While the Court denied Plaintiff’s Motion for Default, it reserved ruling with respect to sanctioning Defendants. II. ARGUMENT 12. The Court should sanction Defendants based upon their uncooperative and dilatory conduct. 13. While the entry of a default is prohibited where an answer or response is filed before the default is entered, even though the answer may have been untimely, See Ingaglio v. Ennis, 443 So.2d 459 (Fla. 4th DCA 1984); Chester, Blackburn & Roder, Inc. v. Marchese, 383 So.2d 734 (Fla. 3d DCA 1980), this does not preclude the imposition of sanctions besides default for a Page 2 of 4 EPGD Business Law 777 SW 37th Ave., Ste. 510, Miami, FL 33135 • T: (786) 837-6787 • F: (305) 718-0687 • www.epgdlaw.com Motion for Sanctions Case No.: 2017-CA-004043 respondent’s dilatory conduct. Marchese, at 735 n. 4. 14. Here, Defendants’ conduct has been especially delaying by waiting for approximately half a year to file a response, knowing that a Motion for Default was pending. 15. While Defendants had approximately six months to file a responsive pleading or motion, Defendants merely filed a Motion for Extension of Time to respond to the Complaint, and even then, made no effort to schedule said motion for hearing or to coordinate an agreed order with Plaintiff. 16. Additionally, although Defendants’ counsel stated that a response would be filed by the end of the week of July 14, 2017, Defendants did not file a response until December 7, 2017, approximately one hour before the hearing scheduled on Plaintiff’s Motion for Default. 17. Therefore, this Court should sanction Defendants in the form of attorneys’ fees and costs, including, but not limited to, those fees expended by Plaintiff for anything related to Defendant’s Motion for Extension of Time and Plaintiff’s Motion for Default, including the hearing thereof. 18. In fact, the Court admonished Defendant during the December 7 hearing and stated that Defendant’s delay was inexcusable. WHEREFORE, the Plaintiff, Mobooka, LLC, respectfully requests that this Honorable Court sanction Defendants, John Hancock and Forsa LLC, in the form of attorney’s fees and costs, and for such further relief as this Court deems just and proper. [This Section Intentionally Left Blank – Certificate of Service Follows] Page 3 of 4 EPGD Business Law 777 SW 37th Ave., Ste. 510, Miami, FL 33135 • T: (786) 837-6787 • F: (305) 718-0687 • www.epgdlaw.com Motion for Sanctions Case No.: 2017-CA-004043 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by email this 19th day of April, 2018 to Patrick Willis, Esq. (pwillis@willisoden.com) and Christopher Bertels, Esq. (cbertels@willisoden.com), Willis & Oden, Counsel for Defendants, John Hancock and Forsa, LLC. Respectfully submitted, EPGD BUSINESS LAW Counsel for Plaintiff 777 SW 37th Ave., Ste. 510 Miami, FL 33135 T: (786) 837-6787 | F: (305) 718-0687 sam@epgdlaw.com By: /s/ Samuel J. Gittle Samuel J Gittle, Esq. Florida Bar No. : 099778 Elizabeth M. Fernandez, Esq. Florida Bar No.: 118657 Page 4 of 4 EPGD Business Law 777 SW 37th Ave., Ste. 510, Miami, FL 33135 • T: (786) 837-6787 • F: (305) 718-0687 • www.epgdlaw.com Exhibit “A” Filing # 65095591 E-Filed 12/07/2017 12:30:27 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA MOBOOKA, LLC, a Florida limited liability company, CASE NO.: 2017-CA-004043 Plaintiff, v. JOHN HANCOCK, et al., Defendants. _____________________________________/ MOTION TO DISMISS COMPLAINT OR ALTERNATIVELY, MOTION FOR MORE DEFINITE STATEMENT Defendants, JOHN HANCOCK (“Mr. Hancock”) and FORSA, LLC (“Forsa”), by and through the undersigned counsel, hereby file their Motion to Dismiss Plaintiff’s Complaint or Alternatively, Motion for More Definite Statement and state: 1. Plaintiff, MOBOOKA, LLC, (“Mobooka”), has filed a seven (7) count Complaint against the Defendants. As more fully explained in this motion all of these counts are legally insufficient and should be dismissed.1 Alternatively, Defendants would ask that the Court require Plaintiff to provide a more definite statement. 1 Defendants also wish to make it clear that they completely and utterly dispute the allegations which are outrageous fabrications by Mobooka’s owner, Steve Howe. Defendants’ would also like to point out that it is not a coincidence that Steve Howe did not sign the verification for the Complaint or the police report (which never resulted in any charges against Mr. Hancock). Instead he had one of his employees sign both so that he could avoid committing perjury. It is also not a coincidence that no exhibits were attached to the complaint corroborating Plaintiff’s allegations and that the key outsider witness, the “Chief Executive Officer of a competitor network” is not identified nor is the company that this person purportedly runs. Defendants intend to demonstrate A. Standard of Review for a Motion to Dismiss When confronted with a motion to dismiss, a court must determine whether the complaint, as phrased within its four corners, sufficiently states a cause of action whereby relief can be granted. See Fox v. Professional Wrecker Operators, Inc., 801 So. 2d 175, 178 (Fla. 5th DCA 2001). The purpose of a motion to dismiss is to test the legal sufficiency of the complaint. See Pacific Ins. Co., Ltd. v. Bothello, 891 So.2d 587 (Fla. 3d DCA 2004). Pursuant to Florida Rule of Civil Procedure 1.110, the Complaint must set forth a short and plain statement of the ultimate facts showing entitlement to relief. The complaint must set out the elements and the facts that support them so that the court and the defendant can clearly determine what is being alleged. See Messana v. Maule Indus., 50 So.2d 874, 876 (Fla.1951) (a complainant must “plead [a] factual matter sufficient to apprise his adversary of what he is called upon to answer so that the court may, upon proper challenge, determine its legal effect.”). “Bare conclusions are insufficient, and pleadings must be stated with sufficient particularity to permit the preparation of a defense.” Arky Freed v. Bowman Instrument Corp., 537 So.2d 561, 563 (Fla. 1988); Beckler v. Hoffman, 550 So.2d 69, 70 (Fla. 5th DCA 1989). It is insufficient to plead opinions, theories, legal conclusions or argument. Barrett v. City of Margate, 743 So. 2d 1160, 1163 (Fla. Dist. Ct. App. 1999). that Plaintiff and Mr. Howe have committed a fraud on the court by alleging facts that are entirely false and untrue. 2 B. Planitiff’s Claims for Injunctive Relief (Count I) and Replevin (Count II) Are Both Legally Insufficient. Under Florida case law, injunctive relief and the cause of action of replevin are both not available remedies to recovery money damages. See Williams Management Enterprises, Inc. v. Buonauro, 489 So. 2d 160, 168 (Fla. 5th DCA 1986); See also Hiles v. Auto Bahn Federation, Inc., 498 So. 2d 997, 998 (Fla 4th DCA 1986). In the Williams Management Enterprises, Inc., decision, the Fifth DCA concluded that money constitutes intangible and fungible property that cannot be recovered through an action for replevin. See Williams Management Enterprises, Inc., 489 So. 2d at 168. Similarly, in the Hiles decision, the Court expressly held that “Injunctive relief may not be used to enforce money damages, or to prevent any party from disposing of assets until an action at law for an alleged debt can be concluded.” Hiles, 498 So. 2d at 998. A party seeking injunctive relief must establish the following elements: 1) irreparable harm; 2) a clear legal right; 3) an inadequate remedy at law; 4) consideration of the public interest. Id. The Hiles Court expressly held that the loss of money does not constitute irreparable harm and also that an adequate remedy of law would exist for such a claim. Id. The Court further concluded that injunctive relief must be denied where the alleged justification is to “prevent an alleged dissipation of corporate assets.” Id. at 999. “The possibility that a money judgment, once obtained, will not be collectible is irrelevant under the test of inadequacy of remedy at law…. 3 Thus, injunctive relief was error because there was no showing of irreparable harm or lack of an adequate remedy at law.” Id. Based on the cases cited herein, Plaintiff’s Injunctive Relief (Count I) and Replevin (Count II) claims should be dismissed with prejudice. C. Plaintiff’s Have Failed to Satisfy a Condition Precedent to Filing a Civil Theft Claim (Counts VI and VII) The cause of action of civil theft is created by Section 772.11, Florida Statutes. Plaintiff has alleged the cause of action of “theft” under Count VI, however, there is no private cause of action for theft other than under Section 772.11. Therefore, Count VI is redundant and should be dismissed with prejudice. Section 772.11 clearly provides that “Before filing an action for damages under this section, the person claiming injury must make a written demand for $200 or the treble damage amount of the person liable for damages under this section.” Plaintiff has not alleged that any such presuit demand occurred and therefore, has failed to satisfy a condition precedent to the filing of any civil theft claim. Plaintiff has also failed to attach any presuit demand under the civil theft statute to its complaint and therefore, has also failed to comply with Fla R. Civ. P., Rule 1.130 which provides as follows: (a) Instruments Attached. All Bonds, Notes, bills of Exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. 4 The pleading requirement of Rule 1.130 clearly requires a plaintiff to attach to the Complaint any documents upon which its action may be brought. See Conklin v. Cohen, 287 So. 2d 56, 60 (Fla. 1973); See also Jeff-Ray Corp. v. Jacobson, 566 So. 2d 885, 886 (Fla. 4th DCA 1990); See also Hughes v. Home Savings of America, 675 So.2d 649, 649-651 (Fla. 2d DCA 1996). “Moreover, it is the responsibility of the plaintiff to provide to the court any documents upon which his alleged cause of action is based.” Winn-Dixie Stores, Inc., v. Sams, 281 So.2d 47, 47-48 (Fla. 3d DCA 1973). For these reasons, both Counts VI and VII should be dismissed as well. D. Plaintiff’s Allegations in Support of Its Cause of Action for Tortious Interference (Counts IV) Are Legally Insufficient. Plaintiff’s has asserted a claim for “Tortious Interference with a Prospective Economic Advantage” i.e., tortious interference with a business relationship or a contract. However, Plaintiff has failed to allege sufficient facts to demonstrate the existence of such a relationship or any contractual rights as required by Fla. R. Civ. P. 1.110. Additionally, to the extent that Plaintiff is asserting that a contractual right was tortiously interfered with, any such contract would be required to be attached to the Complaint pursuant to Fla. R. Civ. P. 1.130. For these reasons, Plaintiff’s claim should be dismissed. Alternatively, Plaintiff should be required to provide a more definite statement. 5 E. Plaintiff’s Allegations in Support of Its Breach of Duty of Loyalty Claim (Count V) Are Legally Insufficient. Plaintiff’s allegations in Support of Its Breach of Duty of Loyalty Claim fail to meet the standard required by Fla. R. Civ. P. 1.110 and are therefore, legally insufficient. Plaintiff makes a number of vague and conclusory references to the misappropriation of trade secrets and other information but never really alleges sufficient facts for the Defendants to understand exactly what the Defendants are claiming that occurred. A complainant must “plead [a] factual matter sufficient to apprise his adversary of what he is called upon to answer so that the court may, upon proper challenge, determine its legal effect. Messana v. Maule Indus., 50 So.2d 874, 876 (Fla.1951) “Bare conclusions are insufficient, and pleadings must be stated with sufficient particularity to permit the preparation of a defense.” Arky Freed v. Bowman Instrument Corp., 537 So.2d 561, 563 (Fla. 1988); Beckler v. Hoffman, 550 So.2d 69, 70 (Fla. 5th DCA 1989). It is insufficient to plead opinions, theories, legal conclusions or argument. Barrett v. City of Margate, 743 So. 2d 1160, 1163 (Fla. Dist. Ct. App. 1999). For these reasons, Count V should be dismissed as well or or alternatively, Plaintiff should be required to provide a more definite statement of its claim. F. Plaintiff’s Allegations in Support of Its Action for Violation of the Florida Uniform Trade Secrets Act (Counts III) Are Legally Insufficient. 6 Plaintiff has alleged that Defendants Violated the Florida Uniform Trade Secrets Action (Count III) yet Plaintiff has not alleged the misappropriation of any information that would actually constitute a trade secret. A trade secret is defined under Section 688.002, Florida Statutes as follows: “Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process that: (a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Plaintiffs allegations in support of this claim consist almost entirely of conclusory assertions. However, it appears that the “trade secrets” being referenced are access codes or passwords, which do not meet the definition provided for in Section 688.002. Plaintiff references “client lists” as well, yet there is no allegation that Defendants have attempted to solicit any clients from Mobooka and therefore, Plaintiff hasn’t alleged sufficient facts in support of any theory that any client lists were misappropriated. Plaintiff also makes the legally conclusory assertion that “proprietary business system information” has been misappropriated yet does layout any facts in support of this allegation and therefore, also fail to satisfy the pleading requirement of Fla. R. Civ. P. 1.110. 7 As best as Defendants can tell, Plaintiffs are referring to access codes or passwords as the “trade secrets”. Yet access codes and passwords don’t have any independent value and therefore, don’t meet the definition of a trade secret provided for in Section 688.002. Also, there is no allegation that any other person could obtain economic advantage from the use of passwords and access codes that presumably have already been changed. Nor is there an allegation that these competitors, would be able to remotely log into Plaintiffs system even if for some reason Plaintiff had failed to take the basis security measure of changing these codes. For these reasons Plaintiffs’ cause of action should be dismissed or alternatively, Plaintiff should be required to provide a more definite statement of its claim. Defendants have retained the services of the undersigned counsel and law firm and have been required to pay a reasonable fee for their services. Defendants are entitled to be reimbursed by the Plaintiff for all attorneys’ fees and costs incurred in this litigation. WHEREFORE, Defendants, JOHN HANCOCK and FORSA, LLC, respectfully request this Honorable Court dismiss Plaintiff’s Complaint or alternatively, require Plaintiff to provide a more definite statement of its claims. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via eFiling, Email and/or U.S. Mail to: Elizabeth Fernandez, Esq., EPGD BUSINESS LAW, 2701 Ponce De Leon Blvd., Ste. 202, Coral Gables, FL 33034 – elizabeth@epgdlaw.com, oscar@epgdlaw.com, paralegal@epgdlaw.com, on this 7th day of December, 2017. 8 /s/ Patrick H. Willis PATRICK H. WILLIS, Esquire Florida Bar No. 526665 Primary Email: pwillis@willisoden.com CHRISTOPHER BERTELS, Esquire Florida Bar No. 98267 Secondary Email: cbertels@willisoden.com WILLIS & ODEN 2121 S. Hiawassee Rd, Suite 116 Orlando, FL 32835 Telephone No. 407-903-9939 Facsimile No. 407-903-9929 Attorneys for Defendants, JOHN HANCOCK and FORSA LLC Facsimile No. 407-903-9929 Attorneys for Defendants 9