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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO
DIVISION RENUEN CORPORATION, J. CHARLES NEMES and DONGJOON
ALEXANDER KIM, Plaintiffs, v.Case No:6:14-cv-1754-Orl-41TBS JOHN L.
LAMEIRA, AMERICAS GREEN ENERGY SOURCE, INC., AMERICAS GREEN ENERGY
CONTRACTORS, INC., CATHY J. LERMAN, STEVEN H. LERMAN, CATHY J.
LERMAN, P.A. and DOES 1-50, Defendants. / ORDER THIS CAUSE is
before the Court on Defendant Americas Green Energy Contractors,
Inc.sMotiontoDismiss(Doc.65);CathyJ
.LermanP.A.sMotiontoDismiss(Doc.66); Americas Green Energy Source,
Inc. and J ohn L. Lameiras Motion to Dismiss (Doc. 67); Cathy J .
Lermans Motion to Dismiss (Doc. 69), and Steven H. Lermans Motion
to Dismiss (Doc. 70). For the reasons stated herein, all five
motions will be granted in part. I.BACKGROUND A.Relevant Parties
Plaintiff RenuEn Corporation (RenuEn) is a Florida corporation
engaged in the business of selling and installing energy saving
products and services for residential and commercial clients.
(Compl., Doc. 1, 1). Plaintiff J . Charles Nemes is the Chief
Executive Officer of RenuEn, and Plaintiff Dongjoon Alexander Kim
is the Chief Legal Officer. (Id. 23).Case 6:14-cv-01754-CEM-TBS
Document 118 Filed 08/03/15 Page 1 of 22 PageID 1532Page 2 of
22
DefendantAmericasGreenEnergySource,Inc.(AGES)andDefendantAmericas
Green Energy Contractors, Inc. (AGEC) are engaged in the business
of marketing and selling renewable energy and energy efficiency
related products on behalf of other companies holding professional
licenses to sell and install such products. (Id. 56). Defendant J
ohn L. Lameira controls both corporations. (Id. 4, 6). Defendant
Cathy J . Lerman (C. Lerman), an attorney, is married to Defendant
Steven H. Lerman (S. Lerman), a Detective for the Coral Springs
Police Department. (Id. 78). Defendant Cathy Lerman, P.A. (the
Lerman Firm) is the law firm of Defendant C. Lerman. (Id. 9, 47).
B.Factual Background The pertinent facts giving rise to Plaintiffs
claims occurred after AGES contracted with RenuEn to sell RenuEns
products and services. (Id. 25). On J anuary 19, 2014, Lameira,
acting on behalf of AGES, executed a Sales and Distribution
Agreement (Agreement) with RenuEn. (Id.). However, on J uly 11,
2014, RenuEn terminated the Agreement after allegedly learning that
LameirahadintentionsofharmingRenuEn.(Id.2630).AfterRenuEnterminatedthe
Agreement, RenuEn alleges that Lameira and AGES began to commit
acts with the intent to damage RenuEns reputation and interfere
with its contractual relations. (Id. 40). RenuEn asserts that AGES
continued selling and signing customers using RenuEn contracts and
documents and
openlyinfringeditstrademarks.(Id.3136).LameiraalsoallegedlyencouragedAGES
employees to contact RenuEn customers, vendors, finance partners,
and government departments to disseminate false information about
RenuEn and its officers. (Id.
4146).DeterminedtobolsteritseffortstoharmRenuEnsreputation,LameiraandAGES
allegedly recruited other parties to assist with their campaign to
discredit Plaintiffs. (Id. 47). In doing so, Lameira and AGES
purportedly formed a group that RenuEn refers to as the Anti-Case
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RenuEn Group (the ARG). (Id.). Plaintiffs aver that the ARG was
comprised of the following individuals and entities: Lameira, AGES
and its employees and agents, AGEC and its employees and agents,
Walter Kritsky,1 C. Lerman, S. Lerman, the Lerman Firm, and Does
1-50. (Id. 47,
173).PlaintiffsclaimthattheARGpostedasubstantialamountoffalseanddisparaging
statements about RenuEn on the internet.(Id. 47, 51111,
11319,12447). Many of the statements proclaimed, inter alia, that
RenuEn was a Ponzi scheme, engaged in fraud, and targeted the
elderly. (See id. 51111, 11319, 12447). Although Defendants
allegedly posted damaging information about RenuEn and its officers
on numerous internet websites, most of the disparaging posts
occurred on www.ripoffreport.com and C. Lermans blog and Twitter
page. (Id. 140).
PlaintiffsalsoassertthatS.LermancausedtheCoralSpringsPoliceDepartmenttopostan
unauthorized Fraud Alert regarding RenuEn on Facebook and Twitter.
(Id. 11314, 12021).As a result of Defendants alleged tortious acts,
RenuEn filed a Complaint in the United States District Court for
the Middle District of Florida seeking, inter alia, recovery for
damages caused by Defendants actions. The Complaint asserts the
following claims against Defendants: false designation of origin in
violation of the Lanham Act, 15 U.S.C. 1125(a)(1)(A), against
Defendants Lameira and AGES (Count I); false advertising in
violation of the Lanham Act, 15 U.S.C. 1125(a)(1)(B), against
Lameira, AGES, and AGEC (Count II); civil violation of the
Racketeer Influenced and Corrupt Organizations Act (RICO), 18
U.S.C. 1961 et seq. (Count III); defamation per se (Count IV);
defamation (Count V); tortious interference with contractual
business relations (Count VI); violation of Floridas Deceptive and
Unfair Trade Practices Act 1 Kritsky is a former employee of
RenuEn. (Compl. 10). Plaintiffs initially named Kritsky
asadefendanttothisaction,butlatervoluntarilydismissedallclaimsagainstKritskywith
prejudice on November 20, 2014. (Voluntary Dismissal, Doc. 39).
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(FDUPTA), Fla. Stat. 501.201 et seq. (Count VII); aiding and
abetting tortious conduct, against Does 1-50 (Count VIII)2; and
civilconspiracy(CountIX). Defendantshave filed motions to dismiss
Plaintiffs claims on a variety of grounds, as further specified
below. II.LEGAL STANDARD A pleading that states a claim for relief
must contain . . . a short and plain statement of the claim showing
that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2).
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may
move to dismiss a complaint for failure to state a claim upon which
relief can be granted. In determining whether to dismiss under Rule
12(b)(6), a court accepts the factual allegations in the complaint
as true and construes them in a light most favorable to the
non-moving party. See United Techs. Corp. v. Mazer, 556 F.3d 1260,
1269 (11th Cir. 2009). Nonetheless, the tenet that a court must
accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions, and [t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Furthermore, [t]o survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face. Id. (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim has
facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. Id. III.DISCUSSION
A.Shotgun Pleading 2 The Court will not address Count VIII in this
Order as it is only asserted against the
severalunidentifieddefendantsandnoDefendanthasmovedtodismissthisclaim.(Compl.
21923). Case 6:14-cv-01754-CEM-TBS Document 118 Filed 08/03/15 Page
4 of 22 PageID 1535Page 5 of 22
Defendants argue that the Complaint constitutes a shotgun
pleading. Shotgun pleadings fail . . . to give the defendants
adequate notice of the claims against them and the grounds upon
which each claim rests. Weiland v. Palm Beach Cty. Sheriffs Office,
No. 13-14396, 2015 WL 4098270, at *5 (11th Cir. J uly 8, 2015). The
quintessential shotgun pleading contains several
counts,eachoneincorporatingbyreferencetheallegationsofitspredecessors,leadingtoa
situation where most of the counts (i.e., all but the first)
contain irrelevant factual allegations and legal conclusions.
StrategicIncomeFund,L.L.C.v.Spear,Leeds&KelloggCorp., 305 F.3d
1293, 1295 (11th Cir. 2002); see also Anderson v. Dist. Bd. of Trs.
of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996) ([The
plaintiffs] complaint is a perfect example of shotgun pleading in
that it is virtually impossible to know which allegations of fact
are intended to support which claim(s) for relief. (citation
omitted)). Plaintiffs Complaint is a shotgun pleading. Each count
incorporates the factual allegations of its predecessors then
incorporates all of the factual allegations within the entire
Complaint. (Id. 154, 162, 171, 185, 199, 208, 213, 219, 224).
Therefore, the Complaint will be dismissed for failure to comply
with the applicable pleading standards. However, Plaintiffs have
requested leave to amend in the alternative. Accordingly, because
leave to amend is not required when amendment would be futile, the
Court will also address Defendants substantive arguments for
dismissal with prejudice. B.Federal Claims 1.Count I: False
Designation of Origin To state a claim for false designation of
origin in violation of 15 U.S.C. 1125(a)(1)(A), Plaintiffs must
allege both that they had trademark rights in the mark or name at
issue and that the other party had adopted a mark or name that was
the same, or confusingly similar to their mark, Case
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such that consumers were likely to confuse the two. Suntree
Techs., Inc. v. EcoSense Intl, Inc., 802 F. Supp. 2d 1273, 1280
(M.D. Fla. 2011) (citing LoneStarSteakhouse&Saloon,Inc.v.
Longhorn Steaks, Inc., 106 F.3d 355, 358 (11th Cir. 1997)), affd,
693 F.3d 1338 (11th Cir. 2012). AGES and Lameira contend that
Plaintiffs have failed to provide sufficient allegations supporting
their claim for false designation of origin. This argument is
unpersuasive.Plaintiffs allege that RenuEn owns the trademarks at
issue. (Compl. 156). Plaintiffs further allege that after RenuEn
terminated its agreement with Lameira and AGES, AGES and Lameira
still continued using RenuEn/Energy Solution contracts in order to
mislead customers into thinking that they were signing contracts
for RenuEn products and services when they were
actuallycontractingwithanon-RenuEnentity.(Id.3138,157).AGESanditssales
representatives purportedly signed approximately ten to fifteen
contracts with RenuEn customers
byholdingthemselvesoutasaRenuEndealerandusingRenuEnsdocuments.(Id.32).
Moreover, AGES allegedly displayed a RenuEn/Energy Solutions logo
outside of its office door and distributed pizza certificates to
customers using RenuEns name and logo. (Id. 36). Accepting these
well-pleaded allegations as true, the Court finds that Plaintiffs
have sufficiently pleaded a claim of false designation of origin
against Defendants Lameira and AGES.2.Count II: False Advertising
The Lanham Act further prohibits the use of false or misleading
representation of fact,
which...incommercialadvertisingorpromotion,misrepresentsthenature,characteristics,
qualities, or geographic origin of his or her or another persons
goods, services, or commercial activities. 15 U.S.C. 1125(a)(1)(B).
To state a claim for false advertising Plaintiffs must allege
that(1)theadvertisementsoftheopposingpart[ies]werefalseormisleading;(2)the
advertisementsdeceived,orhadthecapacitytodeceive,consumers;(3)thedeceptionhada
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material effect on purchasing decisions; (4) the misrepresented
product or service affects interstate commerce; and (5) the
movant[s] [have] beenor [are] likely to beinjured as a result of
the false advertising. HicksonCorp.v.N.CrossarmCo., 357 F.3d 1256,
1260 (11th Cir. 2004). Furthermore, the purported advertisement
must constitute commercial advertising or promotion
withinthemeaningof1125(a)(1)(B).Inorderforrepresentationstoconstitutecommercial
advertising, they must be: (1) commercial speech; (2) by a
defendant who is in commercial competition with plaintiff; (3) for
the purpose of influencing consumers to buy defendants goods
orservices;and(4)mustbedisseminatedsufficientlytotherelevantpurchasingpublicto
constitute advertising or promotion within that industry.
Gordon&BreachSci.Publishers S.A. v. Am. Inst. of Physics, 859
F. Supp. 1521, 153536 (S.D.N.Y. 1994); see also Suntree Techs.,
Inc.,802F.Supp.2dat1286(describingtheGordontestasthemostwidespreadtestfor
determining whether a representation constitutes commercial
advertising). At the outset, to the extent Defendants argue that it
is not apparent from the [C]omplaint which of these postings
constituted commercial advertising for Defendant[s], (see, e.g.,
AGES Mot. Dismiss at 8), Defendants have failed to properly bring
this issue before the Court. It is clear from the Complaint which
postings Plaintiffs allege constitute commercial advertising within
the meaning of the Lanham Act. If Defendants wish to challenge this
designation, they must come before the Court with more than a
conclusory statement that fails to articulate either a legal or
factual basis supporting dismissal. See M.D. Fla. R. 3.01(a) (In a
motion or other application for an order, the movant shall include
a concise statement of the precise relief requested, a statement of
the basis for the request, and a memorandum of legal authority in
support of the request.). Plaintiffs allege that Defendants AGEC,
AGES, and Lameira are in direct competition with RenuEn in the
efficient and renewable energy industry. (Compl. 56, 39, 165).
Plaintiffs further Case 6:14-cv-01754-CEM-TBS Document 118 Filed
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allege that while in direct competition with RenuEn, Lameira and
AGES engaged in a campaign of false advertising by misrepresenting
the nature, characteristics, and qualities of RenuEns goods and
services. (Seeid. 3940, 4647). Plaintiffs also allege that the
ARGwhich includes AGEChas made numerous comments online falsely
stating, inter alia, that RenuEn is a Ponzi scheme and targets the
elderly. (See id. 6269, 7999, 10110, 137 (describing the false and
disparaging statements that the ARG allegedly made regarding RenuEn
and its officers)). Finally, Plaintiffs allege that they suffered
damages including but not limited to loss of sales and goodwill,
diminution in stock value, and damage to its existing and potential
business relations. (Id. 168). Based upon the allegations of the
Complaint, it is reasonable to infer that Defendants alleged
statements were false, had the capacity to deceive consumers, and
that they had a material effect on purchasing decisions.
Additionally, because Defendants allegedly made most of their
misrepresentationsonline,theCourtcanalsoreasonablyinferthatinterstatecommercewas
affected. Therefore, Defendants Motions to Dismiss fail to provide
sufficient grounds for the dismissal of Count II with prejudice.
3.Count III: RICO Under 18 U.S.C. 1962(c), it is unlawful for any
person employed by or associated with any enterprise engaged in, or
the activities of which affect, interstate or foreign commerce, to
conduct or participate, directly or indirectly, in the conduct of
such enterprises affairs through a pattern of racketeering activity
or collection of unlawful debt. Thus, to plead a claim for
violation of 1692(c), the plaintiff must allege: (1) that an
enterprise existed; (2) that the enterprise affected interstate
commerce; (3) that the defendants were employed by or associated
with the enterprise; (4) that the defendants participated, either
directly or indirectly, in the conduct of the enterprise; Case
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and (5) that the defendants participated through a pattern of
racketeering activity. United States v. Browne, 505 F.3d 1229, 1257
(11th Cir. 2007).
Plaintiffshavefailedtosufficientlyallegethefifthelement,apatternofracketeering
activity.3 To successfully allege a pattern of racketeering
activity, plaintiffs must charge that: (1) the defendants committed
two or more predicate acts within a ten-year time span; (2) the
predicate acts were related to one another; and (3) the predicate
acts demonstrated criminal conduct of a
continuingnature.Jacksonv.BellSouthTelecomms.,372F.3d1250,1264(11thCir.2004)
(emphasis in original). The last element, continuity or the threat
of continued criminal activity, may refer to either a closed period
of repeated conduct, or to past conduct that by its nature projects
into the future with a threat of repetition. The former period is
referred to as closed-ended continuity, and the latter as
open-ended continuity. Lockheed Martin Corp. v. Boeing Co., 314 F.
Supp. 2d 1198, 1219 (M.D. Fla. 2004) (quoting H.J. Inc. v. Nw. Bell
Tel. Co., 492 U.S. 229, 236 (1989)). Plaintiffs allege an
open-ended continuity of criminal activity. (See Compl. 173, 175).
In open-ended cases that rely on alleging the threat of continuity,
plaintiffs can meet their [pleading] burden by establishing either
that the racketeering acts themselves include a specific threat of
repetition extending indefinitely into the future, or that the
predicate acts or offenses are part of an ongoing entitys regular
way of doing business. Jackson, 372 F.3d at 1265 (emphasis omitted)
(quoting H.J. Inc., 492 U.S. at 242). Plaintiffs have not alleged
that the specified pattern of conduct is Defendants regular way of
doing business. They make no allegations that the
3TheCourtnotesthatPlaintiffshaveallegedthatDefendantsactionsconstitute[]a
pattern of racketeering activity within the meaning of 18 U.S.C.
1961(5). (Compl. 181). However, such a quotation to the language of
the statute is a legal conclusion that this Court is not obligated
to accept as true. Plaintiffs have not provided sufficient factual
allegations to allege the existence of a pattern. Case
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purported enterprise engaged in similar conduct before or has
engaged in similar conduct against any other individual or company.
See Aeropower, Ltd. v. Matherly, 511 F. Supp. 2d 1139, 1152 (M.D.
Ala. 2007) (holding that a RICO complaint failed to allege
open-ended continuity where there was no indication that there
[were] other incidents where the defendants . . . conducted
themselves in the same manner and [the plaintiff] . . . offered no
prior examples of how this conduct factor[ed] in with the
defendants regular business practices). The Complaint also fails to
allege any threat of repetition. At the outset, Plaintiffs only
make the conclusory allegation that Defendants are engaged in
ongoing activities under the alleged RICO scheme, this is
insufficient to plead the requisite continuing threat. See Kivisto
v. Miller, Canfield, Paddock & Stone, PLC, 413 F. Appx 136, 138
(11th Cir. 2011) (An open-ended continuity cannot be shown by
conclusory allegations that once begun, the alleged misconduct
threatens to continue into the future.). Furthermore, it is clear
that single schemes with a specific objective and a natural ending
point can almost never present a threat of continuing racketeering
activity. Ferrell v. Durbin, 311 F. Appx 253, 257 (11th Cir. 2009).
The Complaint alleges that Defendants have conspired to ruin
Plaintiffs business and reputations. Thus, the alleged RICO
enterprise consists of a single scheme with a specific objective.
Additionally, there is a natural
endingpointtotheschemeonceDefendantshaveaccomplishedtheirobjectivesofcausing
RenuEn to cease operations; Defendants cannot conspire to ruin the
reputation and success of a defunct entity. See Dysart v.
BankTrust, 516 F. Appx 861, 864 (11th Cir. 2013) ([The plaintiff]
failed to establish open-ended continuity because the scheme she
alleged . . . cannot be repeated.); seealsoManaxv.McNamara, 842
F.2d 808, 81112 (5th Cir. 1988) (holding that the plaintiff Case
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failed to allege continuity where the alleged association had as
its purpose a single, relatively short-lived goal: accomplishing
the destruction of [the defendants] medical practice).4
TotheextentthatPlaintiffshaveattemptedtoallegeclosed-endedcontinuity,the
Complaint also fails to sufficiently allege a pattern of
racketeering activity. A party alleging a RICO violation may
demonstrate continuity over a closed period by proving a series of
related predicates extending over a substantial period of time.
Predicate acts extending over a few weeks or months and threatening
no future criminal conduct do not satisfy this requirement. H.J.
Inc., 492 U.S. at 242. Furthermore, in cases like this one, where
the RICO allegations concern only a single scheme with a
discretegoal, the courts have refused to find a closed-ended
pattern of racketeering even when the scheme took place over longer
periods of time. Jackson, 372 F.3d at 1267 (collecting cases).
Thus, courts have required, at a minimum, a greater period of time
and more alleged victims in such cases. See Ferrell, 311 F. Appx at
256 (holding that a complaint did not sufficiently allege
closed-ended continuity where the alleged actions took place over
roughly a year and a half because of the scant allegations, the
limited time frame, the single scheme and the existence of only two
victims); J&DIntlTrading(H.K.)Ltd.v.MTDEquip.,LLC, No.
1:13-cv-2526-RWS, 2014 WL 1683375, at *11 (N.D. Ga. Apr. 28, 2014)
([T]he period [of alleged 4 The Manax court held that the lack of
continuity negated the existence of an association-in-fact
enterprise. Manax, 842 F.2d at 81112. Courts in this District have
likewise stated that a
single,short-termobjectivegoestotheexistenceofanassociation-in-fact.SeeGellertv.
Richardson, No. 6:95-cv-256-Orl-19, 1995 WL 856715, at *1 (M.D.
Fla. J uly 24, 1995). However, the majority of cases in the
Eleventh Circuit state that suchallegations negate the pattern of
racketeering activity element. See,e.g., Ferrell, 311 F. Appx at
25657 (discussing continuity requirements in terms of pleading a
pattern of racketeering activity). Thus, this Court will discuss
thiselementinregardstothepleadingrequirementsofapattern.Nevertheless,totheextent
pleading an association-in-fact requires similar allegations,
Plaintiffs RICO claim is insufficiently pleaded for the reasons
stated herein. Case 6:14-cv-01754-CEM-TBS Document 118 Filed
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conduct] may have to be even longer where the RICO allegations
concern only a single scheme with a discrete goal. (quotation
omitted)). Taken in the light most favorable to Plaintiffs, the
charged conduct occurred between August and October 2014. (Compl.
47, 142). Numerous courts have held that conduct lasting less than
one year is insufficient to allege closed-ended continuity, see
Jackson, 372 F.3d at 1266 (collecting cases), and the Eleventh
Circuit has expressly stated that cases such as this one, with
onlyahandfulofallegedvictims,asingle,isolatedgoal,andanarrowscopeofalleged
racketeering activity, nine months is insufficient to allege
closed-ended continuity, id. at 1267; see also Ferrell, 311 F. Appx
at 256 (holding that conduct spanning a year and a half was
insufficient to allege closed-ended continuity where there was a
single scheme and only two victims). Thus, Plaintiffs allegations
of conduct lasting only three months, constituting a single scheme
with a
distinctgoal,andwithrelativelyfewpurportedvictimsisinsufficienttopleadclosed-ended
continuity.Therefore,Plaintiffshavenotpleadedeitheropen-orclosed-endedcontinuityas
required to properly allege a pattern of racketeering activity in
violation of 1692(c). Plaintiffs RICO claim, as pleaded, fails to
state a claim. C.State Law Claims 1.Counts IV and V: Defamation Per
Se and Defamation From what the Court can discern, Defendants argue
that Plaintiffs defamation claims should be dismissed because: (1)
Plaintiffs cannot prove their claims for defamation5; (2)
Plaintiffs 5 The Court rejects Defendants arguments that their
alleged statements are non-actionable as truthful, and that
Plaintiffs will not be able to prove their claims. These are
improper arguments at this stage in the proceedings. At the motion
to dismiss stage, the Court must accept all
well-pleadedfactsastrue.Iqbal,556U.S.at664.PlaintiffsspecificallyallegethatDefendants
defamatorystatementsarefalse.Thus,theveracityofDefendantsallegedstatementsand
Plaintiffs ability to prove this claim, are matters best resolved
at the summary judgment stage or at trial. Case
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fail to sufficiently allege the requisite elements of their
claim; (3) Defendants alleged statements were protected under the
First Amendment as pure opinion; and (4) Plaintiffs fail to allege
actual malice. In addition to these arguments, S. Lerman contends
that Plaintiffs defamation claims are barred by the absolute
privilege doctrine, while C. Lerman and the Lerman Firm maintain
that Plaintiffs have failed to comply with Floridas pre-suit notice
requirements. Pre-suit Notice under Fla. Stat. 770.01 C.Lermanand
theLerman Firmargue that Plaintiffs claimsfor defamation must be
dismissed because C. Lerman and the Lerman Firm constitute media
defendants by virtue of the Lerman Firms blog, but Plaintiffs
failed to provide them with pre-suit notice pursuant to Fla. Stat.
770.01. Section 770.01 provides: Before any civil action is brought
for publication . . . in a newspaper, periodical, or other medium,
of a libel or slander, the plaintiff shall . . . serve notice in
writing on the defendant, specifying the article or broadcast and
the statements therein which he or she alleges to be false and
defamatory. Florida courts have interpreted section 770.01 to apply
only to media defendants. Intiharv.CitizensInfo.Assocs.,LLC, No.
2:13-cv-720-FtM-29CM, 2014 WL 842464, at *4 (M.D. Fla. Mar. 4,
2014). While Florida courts have determined that a blogger may
constitute a media defendant, the mere title of blogger does not
automatically render an individual a media defendant. The Court
must consider the individual circumstances. See Comins v.
Vanvoorhis, 135 So. 3d 545, 559 (Fla. 5th DCA 2014). In determining
whether a defendant constitutes a media defendant, Florida courts
consider whether the defendant engages in the traditional function
of the news media, which is to initiate uninhibited, robust, and
wide-open debate on public issues. Ortega Trujillo v. Banco Cent.
Del Ecuador, 17 F. Supp. 2d 1334, 1338 (S.D. Fla. 1998) (quoting
Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974)). Thus, media
defendants are not just those who impartially disseminate Case
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information, or issue unsolicited, disinterested and neutral
commentary as to matters of public interest. The term also applies
to those who editorialize as to matters of public interest without
being commissioned to do so by [their] clients. Tobinick v.
Novella, No. 9:14-cv-80781, 2015 WL 1191267, at *8 (S.D. Fla. Mar.
16, 2015) (quoting Ortega Trujillo, 17 F. Supp. 2d at 1338).
Neither C. Lerman nor the Lerman Firm constitute a media defendant
within the meaning of section 770.01. Although it cannot be denied
that Defendants used the blog to disseminate information, they did
so primarily for purposes of financial gain and advertisement, not
for the purpose of the free dissemination of information. Unlike
the defendant in Comins, Defendants are not disinterested, neutral
persons commenting on matters of public concern. Rather, Defendants
haveactivelyusedtheinformationtheyaredisseminatingaboutPlaintiffstosolicitpotential
clients. (See, e.g., Aug. 15, 2014 Blog Post, Ex. 4 to Compl., Doc.
1-1, at 6; Sept. 19. 2014 Blog Post, Ex. 29 to Compl., Doc. 1-5, at
24). Thus, Defendants are more akin to the public-relations firm
defendant in Ortega Trujillo because they are acting out of
financial interest and not in the interest of providing impartial
commentary on matters of public concern. Rather, the editorial
content provided by Defendants is, in a large sense, commissioned
by those willing to pay their
feestoprosecutetheallegedfraudsters.SeealsoTobinick,2015WL1191267,at*6,89
(distinguishingOrtegaTrujillobecausedefendantwasanot-for-profitcorporationwith
educationalgoals,itscommentswerenotcommissioned,anditsblogdidnotadvertisethe
defendants products). Therefore, C. Lerman and the Lerman Firm are
not media defendants and are not entitled to pre-suit notice
pursuant to section 770.01. The First Amendment
Defendantsallegethatthechargedstatementsareopinionorhyperboleanddonot,
therefore, constitute actionable defamation pursuant to the First
Amendment. It is well established Case 6:14-cv-01754-CEM-TBS
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22
thatapureexpressionofopinionisconstitutionallyprotected.Colodnyv.Iverson,Yoakum,
Papiano&Hatch, 936F. Supp. 917, 923 (M.D. Fla. 1996)
(quotationomitted). Thus, if the
communicationatissueconstitutesapureexpressionofopinion,itisprotectedbytheFirst
Amendment and cannot be the basis of a defamation claim. Morse v.
Ripken, 707 So. 2d 921, 922 (Fla. 4th DCA 1998). However, if the
statement is a mixed expression of fact and opinion or a pure
expression of fact, it is not protected. Id. [W]hether the alleged
defamatory word is a[] non-actionable expression of pure opinion or
an actionable expression of pure fact or mixed opinion and fact is
a question of law for the Court. Colodny, 936 F. Supp. at 923. At
the outset, Defendants have pointed this Court to no allegations in
the Complaint which would not constitute pure expressions of fact.
The passing statement that the statements made by Defendant would
be privileged, statements of opinion, and/or rhetorical hyperbole,
(see,e.g., AGEC Mot. to Dismiss at 14), without citation to either
the Complaint or to legal authority is not sufficient to properly
bring this issue before the Court. In any event, Plaintiffs have
alleged that
Defendantsmadeatleastsomepurestatementsoffact.Therefore,Plaintiffshavealleged
defamatory statements that are not subject to First Amendment
protection. Actual Malice or Negligence To state a cause of action
for defamation under Florida law, a plaintiff must allege: (1)
publication; (2) falsity; (3) actor must act with knowledge or
reckless disregard as to the falsity on a matter concerning a
public official, or at least negligently on a matter concerning a
private person; (4) actual damages; and (5) statement must be
defamatory. Jews For Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106
(Fla. 2008). Defamation per se occurs when a communication imputes
to another . . . a criminal offense amounting to a felony . . .
[or] conduct, characteristics, or a condition
incompatiblewiththeproperexerciseofhislawfulbusiness,trade,profession,oroffice.
Case 6:14-cv-01754-CEM-TBS Document 118 Filed 08/03/15 Page 15 of
22 PageID 1546Page 16 of 22
Campbell v. Jacksonville Kennel Club, 66 So. 2d 495, 497 (Fla.
1953). Defamation per se requires proof of all the elements of a
defamation claim except damages, which are presumed. See Leavitt v.
Cole, 291 F. Supp. 2d 1338, 1342 (M.D. Fla. 2003); Hood v. Connors,
419 So. 2d 742, 743 (Fla.
5thDCA1982).6Defendantsdonotchallengepublicationordamages,orthatthespecified
statements are defamatory, but Defendants do contend that
Plaintiffs have failed to plead the requisite culpability.
Defendants also challenge the falsity of the statements; however,
Plaintiffs have alleged that the statements are false and that is
adequate at the motion to dismiss stage. Defendants contend that
Plaintiffs are public figures and must, therefore, allege actual
malice in order to state a claim for defamation. Plaintiffs,
conversely, argue that they are not public
figuresandmustonlyallegenegligenceastothetruthorfalsityofDefendantsstatements.
However, the Court declines to determine if Plaintiffs are private
or public figures at this time because the allegations of the
Complaint are sufficient to allege actual malice as to Lamiera,
AGES, AGEC, C. Lerman, and the Lerman Firm. Additionally, the
allegations of the Complaint are insufficient to allege even
negligence as to S. Lerman. To show actual malice a plaintiff must
establish by clear and convincing evidence that the speaker made
the statement with knowledge that it was false or with reckless
disregard of whether it was false or not. Dunn v. Air Line Pilots
Assn, 193 F.3d 1185, 1192 (11th Cir. 1999) (quoting Old Dominion
Branch No. 496, Natl Assn of Letter Carriers, AFL-CIO v. Austin,
418 U.S. 264, 281 (1974)). Because actual malice is a matter of
proof, allegations of knowledge of falsity or a reckless disregard
for the statements falsity is sufficient at [the motion to dismiss]
6ForpurposesoftheMotionstoDismisspresentlybeforetheCourt,thedistinction
between defamation and defamation per se is inconsequential.
Defendants have not challenged Plaintiffs actual damages
allegations and therefore the two claims may be considered together
for purposes of this Order. Case 6:14-cv-01754-CEM-TBS Document 118
Filed 08/03/15 Page 16 of 22 PageID 1547Page 17 of 22
stage in the litigation. No Witness, LLC v. Cumulus Media
Partners, LLC, No. 1:06-cv-1733 J EC, 2007 WL 4139399, at *8 (N.D.
Ga. Nov. 13, 2007). The allegations, taken in the light most
favorable to Plaintiffs, allege actual knowledge of falsity or
reckless disregard as to Defendants Lamiera, AGES, AGEC, C. Lerman,
and the Lerman Firm. Plaintiffs have alleged that the forenamed
Defendants intentionally fabricated and published false information
regarding Plaintiffs in order to harm Plaintiffs business and
reputations. (See, e.g., Compl. 58, 60, 6263, 69, 81). This is
sufficient to allege knowledge of falsehood as the Complaint is
alleging that Defendants fabricated the subject statements.
Furthermore, Plaintiffs have pleaded that C. Lerman was, at the
least, guilty of reckless disregard as to the veracity of the
statements. On August 18, 2014, Plaintiff Kim allegedly e-mailed C.
Lerman in an attempt to cooperate with the investigation into
Plaintiffs. (Id. 56). However, C. Lerman responded that she was not
interested in [Plaintiffs] information. (Id. (quotation omitted)).
This is adequate to plead at least reckless disregard on the part
of C. Lerman. As to S. Lerman, Plaintiffs have failed to make any
specific allegations as to his level of culpability for publishing
the specified statements. Florida law requires at least a showing
of negligence on the part of the defendant in order to be held
liable for defamation. Miami Herald Publg Co. v. Ane, 423 So. 2d
376, 378 (Fla. 3d DCA 1982) (noting that under Florida law, a
non-public figure must only establish that the defendant published
the alleged false and defamatory statements with negligence), affd,
458 So. 2d 239 (Fla. 1984). Negligence, for the purpose of
defamation law, means the defendant acted without reasonable care
as to whether th[e] statements were true or false. Id. at 388.
Here, Plaintiffs only allege that S. Lerman caused a purportedly
defamatory statement to be posted on Facebook and Twitter. (Compl.
11314). Plaintiffs do not, however, make any allegations as to S.
Lermans conduct in regards to the truth or falsity of Case
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PageID 1548Page 18 of 22
the statements. Plaintiffs have not pleaded that S. Lerman was
aware that the information was false, that he was reckless in this
regard, or that he failed to conduct an investigation into the
veracity of his statements. To the extent that Plaintiffs argue
that they alleged all Defendants acted with actual malice, (id.
193, 203), this is a legal conclusion and insufficient to overcome
a motion to dismiss. Accordingly, Plaintiffs have alleged neither
actual malice nor negligence with respect to S. Lerman.7 2.Count
VI: Tortious Interference with Contractual Business Relations A
claim for tortious interference with a business relationship
requires (1) the existence of a business relationship[;] (2)
knowledge of the relationship on the part of the defendant; (3) an
intentional and unjustified interference with the relationship by
the defendant; and (4) damage to the plaintiff as a result of the
breach of the relationship. Gossard v. Adia Servs., Inc., 723 So.
2d 182, 184 (Fla. 1998) (quotation
omitted).Defendants,withtheexceptionofS.Lerman,donotarguethattheComplaintlacks
sufficient allegations supporting a claim for tortious
interference, rather, they argue that Plaintiffs cannot prove their
claim because RenuEns contracts were illegal and fraudulently
induced and, therefore, are void. As an initial matter, this
argument is improper at the motion to dismiss stage because the
Court is limited to assessing the sufficiency of the allegations
within the four corners
oftheComplaint.Furthermore,thisargumentismeritlessasFloridacourtshaveexpressly
recognized that a claim for tortious interference can be maintained
even though [the] business
relationshipisbasedonacontractwhichisvoidandunenforceable.EthanAllen,Inc.v.
7 The Complaint fails to sufficiently plead either defamation or
defamation per se against Defendant S.Lerman. Therefore, the Court
need not address S.Lermans absolute immunity defense at this time.
Case 6:14-cv-01754-CEM-TBS Document 118 Filed 08/03/15 Page 18 of
22 PageID 1549Page 19 of 22
Georgetown Manor, Inc., 647 So. 2d 812, 815 (Fla. 1994) (citing
UnitedYacht Brokers, Inc. v. Gillespie, 377 So. 2d 668, 672 (Fla.
1979)). S. Lerman argues that the Complaint is devoid of any
fact-based allegations that there existed any business relationship
with any contractor or customer that was terminated or destroyed,
oranyfact-basedallegationthatanysuchparticularbusinessrelationshipwasknownto[S.
Lerman]. (S. Lerman Mot. to Dismiss at 10). Plaintiffs have
sufficiently alleged that Defendants,
includingS.Lerman,hadknowledgeofexistingandprospectivebusinessrelationsbetween
RenuEn and its customers. (See, e.g., Compl. 33, 38, 52, 71, 153).
However, [e]ither a breach or termination of a business
relationship is necessary to establish interference. Martinezv.
Pavex Corp., 422 F. Supp. 2d 1284, 1297 (M.D. Fla. 2006); see also
Anthony Distributors, Inc. v. Miller Brewing Co., 941 F. Supp.
1567, 1572 (M.D. Fla. 1996) ([B]ased on a review of relevant case
law, . . . this Court holds that either breach or termination of a
business relationship or expectancy is necessary to establish
interference.). Plaintiffs have not specifically pleaded the breach
or termination or an existing or expected business relationship.
Thus, as currently pleaded, the Complaint fails to state a claim
for tortious interference with a business relationship against any
Defendant. 3.Count VII: FDUTPA AGEC, AGES, and Lameira8 contend
that the Complaint does not contain sufficient factual allegations
to state a claim under FDUTPA. To state an FDUTPA claim, [the
plaintiff] must allege 8 Only Defendants AGEC, AGES, and Lameira
challenge the FDUTPA claim. In their response, Plaintiffs do not
argue that the remaining Defendants were intended to be addressed
in Count VII. Accordingly, the Court will consider only those
arguments before it andwill not address Count VII as to Defendants
C. Lerman, S. Lerman, or the Lerman Firm. To the extent Plaintiffs
intended to allege FDUTPA violations against one or all of these
Defendants, they must do so with specificity. Generalized use of
the term Defendants only adds to the confusion created Case
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PageID 1550Page 20 of 22
(1) a deceptive act or unfair trade practice; (2) causation; and
(3) actual damages. Dolphin LLC v. WCI Cmtys., Inc., 715 F.3d 1243,
1250 (11th Cir. 2013) (citing Rollins, Inc. v. Butland, 951 So.
2d860,869(Fla.2dDCA2006)).PlaintiffsFDUPTAclaimessentiallyreliesonthesame
allegations supporting Plaintiffs claims for trademark infringement
and defamation. SeeNat.
Answers,Inc.v.SmithKlineBeechamCorp.,529F.3d1325,1333(11thCir.2008)([The
plaintiffs] claim for a violation of [FDUTPA] rises or falls on the
success of [the plaintiffs]
trademarkinfringementandfalseadvertisingclaims.);ArmyAviationHeritageFound.&
Museum, Inc. v. Buis, 504 F. Supp. 2d 1254, 126263 (N.D. Fla. 2007)
(noting that statements found to be defamatory [may] also
constitute[] violations of FDUTPA where the defamatory statement
relates to business matters). Plaintiffs have pleaded claims for
trademark infringement
anddefamationrelatedtobusinesspracticesagainstAGEC,AGES,andLameira.Therefore,
AGECs, AGESs, and Lameiras motions to dismiss Plaintiffs FDUTPA
claim with prejudice will be denied. 4.Count IX: Civil Conspiracy
Under Florida law, a civil conspiracy requires: (a) an agreement
between two or more parties, (b) to do an unlawful act or to do a
lawful act by unlawful means, (c) the doing of some overt act in
pursuance of the conspiracy, and (d) damage to plaintiff as a
result of the acts done under the conspiracy. Fuller v. Mortg.
Elec. Registration Sys., Inc., 888 F. Supp. 2d 1257, 1273 (M.D.
Fla. 2012) (quoting Eagletech Commcns, Inc. v. Bryn Mawr Inv. Grp.,
Inc., 79 So. 3d 855, 863 (Fla. 4th DCA 2012)). General allegations
of conspiracy are inadequate. A complaint must set forth clear,
positive, and specific allegations of civil conspiracy. Id.
(quotation omitted). by Plaintiffs shotgun approach to pleading.
The Complaint should clearly and specifically indicate each
Defendant being charged with liability under each count of the
Complaint. Case 6:14-cv-01754-CEM-TBS Document 118 Filed 08/03/15
Page 20 of 22 PageID 1551Page 21 of 22
Plaintiffs have failed to state a claim for civil conspiracy.
Under Florida law, [i]t is not to be presumed that a mere
conspiracy per se has resulted in civil damages; therefore, that
fact must be pleaded in the complaint in order to make a good cause
of action against motion. Bondv. Koscot Interplanetary, Inc., 246
So. 2d 631, 635 (Fla. 4th DCA1971) (quotation omitted); see also
Catlett v. Chestnut, 146 So. 547, 479 (Fla. 1933) ([T]he character
and extent of the private injury resulting from the alleged
conspiracy must be pleaded by the complaining party . . . . It is
not to be presumed that a mere conspiracy per se has resulted in
civil damages.). Plaintiffs have not alleged any damages arising
from the alleged conspiracy. Therefore, Plaintiffs civil conspiracy
allegations fail to state a claim upon which relief can be
granted.9 IV.CONCLUSION In accordance with the foregoing, it is
hereby ORDERED and ADJUDGED as follows: 1.Defendant Americas Green
Energy Contractors, Inc.s Motion to Dismiss (Doc. 65); Cathy J .
Lerman P.A.s Motion to Dismiss (Doc. 66); Americas Green Energy
Source, Inc. and J ohn L. Lameiras Motion to Dismiss (Doc. 67);
Cathy J . Lermans Motion to Dismiss (Doc. 69), and Steven H.
Lermans Motion to Dismiss (Doc. 70) are GRANTED in part. 2.The
Complaint (Doc. 1) is DISMISSED without prejudice. 3.Plaintiffs may
file an amended complaint, in accordance with this Order, on or
before Monday, August 17, 2015. Failure to do so will result in the
dismissal of 9 S. Lerman argues that Plaintiffs state law claims
are barred by sovereign immunity under Fla. Stat. 768.28(9)(a),
which provides an officer with immunity for any actions taken in
the course of his or her employment unless such officer acted in
bad faith or with malicious purpose. However, Plaintiffs have
failed to state a claim against S. Lerman, and therefore, the Court
declines
toaddresshisqualifiedimmunitydefenseatthistime.Defendantmayrenewthisclaimif
appropriate in the future. Case 6:14-cv-01754-CEM-TBS Document 118
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Counts III, VI, and IX and all claims against Defendant S.
Lerman with prejudice and without further notice. DONE and ORDERED
in Orlando, Florida on August 3, 2015. Copies furnished to: Counsel
of Record Case 6:14-cv-01754-CEM-TBS Document 118 Filed 08/03/15
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