ORDER GRANTING IN PART SUMMARY JUDGMENT ON THIRD-PARTY CLAIMS
SEITZ, District Judge.
THIS CAUSE is before the Court on the Third-Party Defendant International Management, Inc.'s Motion for Summary Judgment [D.E. 405]. After hearing oral argument on the motions, and for the reasons set forth below, the Court denies that motion as to Counts IV and V (defamation) and grants it as to all other Counts (antitrust, tortious interference, civil theft, negligence).
UNDISPUTED MATERIAL FACTS
A. The Parties.
Plaintiffs Arnold Palmer, Jack Nicklaus, and Tiger Woods are world famous golfers. Both Palmer and Nicklaus own registered trademarks; Woods has none. Plaintiffs Arnold Palmer Enterprises, Inc. ("AP Enterprises"), Golden Bear Golf, Inc., and ETW Corporation are the golfers' respective licensing and business entities. Palmer is an owner and employee of AP Enterprises, Nicklaus is the Chairman of Golden Bear Golf,
Third-party Defendant International Management Group ("IMG") is the world's largest sports and celebrity representation business firm, and acts as agent for both Palmer and Woods. It is undisputed that Nicklaus has no business relationship with IMG. IMG receives compensation in connection with licensing and business opportunities entered into by AP Enterprises and ETW Corporation. Specifically, IMG earns a commission on Palmer's professional golf earnings, excluding Palmer's endorsements, and a percentage of ETW Corporation's earnings, including Wood's endorsements. There is an overlap of personnel between IMG and ETW Corporation, and also IMG and AP Enterprises. For instance, John Oney, who is the Associate Counsel and Vice President of IMG, is also an uncompensated officer of both ETW Corporation and AP Enterprises. The Senior Executive Vice President of IMG, Alastair Johnston, is also the chief operating officer of AP Enterprises as Palmer's personal manager. Woods' agent, Hughes Norton of IMG, is also an officer of ETW Corporation.
Defendant Gotta Have It Golf Collectibles, Inc. ("Gotta Have It") is a sports memorabilia retailer which specializes in golf-related merchandise and is wholly owned by Defendant Bruce Matthews.
B. Plaintiffs' Enforcement Activities.
Beginning in late 1996, the Plaintiffs made a concerted, nationwide effort to stop the unauthorized sale of their images and alleged signatures in the memorabilia market. Plaintiffs (specifically, Golden Bear Golf, AP Enterprises, and ETW Corporation) retained the law firm of Lewin & Laytin (and specifically, Jeffrey Laytin, hereinafter "Laytin") to take stops to stop third parties from selling photographs and signatures of Palmer, Nicklaus, and Woods.
1. Enforcement efforts as to Gotta Have It.
As part of the enforcement process, Laytin utilized the services of a private investigator, Wayne Grooms ("Grooms"). On December 18, 1996, Grooms, acting upon the instructions of Laytin and Oney, ordered from Gotta Have It one autographed Arnold Palmer photograph, "Arnold Palmer On the Swilken Bridge," for $350.00.
On March 27, 1997, Laytin sent a cease and desist letter on behalf of ETW Corporation and Woods to Gotta Have It. On March 28, 1997, Laytin spoke by telephone with Defendant Matthews and re-faxed the March 27, 1998, cease and desist letter. On Tuesday, April 1, 1997, Laytin sent Gotta Have It a follow-up to the March 27, 1997, cease and desist letter, advising that Laytin also represented Palmer, AP Enterprises, Nicklaus, and Golden Bear Golf, and demanding specifically that Gotta Have It cease and desist from sales of allegedly unauthorized merchandise at the TPC Sawgrass Tournament in Ponts Vedra. Florida, Gotta Have It never responded.
2. Events at the 1997 Masters in Augusta, Georgia.
On April 2, 1997, Grooms spoke with Scott Maurer ("Maurer"), the administrative
Cain received the April 7 Gotta Have It cuts and American Legends merchandise from Grooms on April 8, 1997. Cain then compared the April 7 cuts to previously supplied exemplars of Palmer's, Nicklaus's, and Woods' known signatures, and concluded that the signatures appearing on the April 7 Gotta Have It cuts were probable forgeries as well. Thus, on April 8, 1997, Cain executed an affidavit confirming that the signatures were probable forgeries and faxed the affidavit to Grooms in Augusta on that same day.
Upon receipt of the affidavit on April 8, 1997, Grooms (acting again on the instructions of Laytin) informed Richmond County Police Chief Ronald Strength that the Plaintiffs' handwriting expert had determined the signatures appearing on Gotta Have It and American Legends merchandise were forgeries.
The four arrestees were charged with felony forgery and/or counterfeiting of trademarks or registered designs under Georgia Criminal Statute 10-1-454, and were brought to the Richmond County Jail. They were subsequently released on bail. Sixty (60) items of Gotta Have It merchandise and thirty-four (34) items of American Legends merchandise were seized at the time of the arrests, all of which contained photographs and/or autographs of Palmer and Woods. At the instruction of Laytin and with the assistance of Grooms, approximately thirty-five (35) items from the confiscated goods were dismantled and sent to Cain for analysis.
3. Post-arrest publicity.
Prior to the planned criminal arrests, Grooms notified Mr. Beverly Norwood ("Norwood"), IMG's Vice President of Golf Publishing, and Tiger Woods of the impending law enforcement action. In turn, Norwood, acting solely in his capacity as representative of Woods, contacted Jerry Tarde ("Tarde"), an editor of Golf Digest magazine, and advised Tarde that Woods was planning to take action against sellers of unlicensed memorabilia at the Masters, including Gotta Have It, by asking law enforcement officers to arrest them and confiscate their merchandise. Norwood further advised Tarde that the action was scheduled to take place "on Wednesday [April 9, 1997] at ten a.m." Norwood stated that he had advised Tarde of the arrests because "the subject of Tigermania, as it's called, is something that has been of interest to Golf Digest all along, which included the sale of various merchandise." After Tarde expressed interest in covering the arrests, Norwood agreed to meet with a Golf Digest writer and photographer at a specified location at the Masters. The Golf Digest team then documented the arrests. It is undisputed that Norwood alerted no other media to the arrest and seizure, nor did he ever discuss Gotta Have It with any member of the media prior to the seizure, other than Golf Digest.
Following the arrests, three separate articles reporting the events in Augusta were published. The first article was the Golf Digest coverage of the arrests, which was published on April 18, 1997. The article stated that Georgia law enforcement officers "working on tips from representatives of Woods and Arnold Palmer arrested four men ... and seized almost $70,000 in goods that the players' agents said contained bogus signatures." Alastair Johnston, Palmer's personal agent at IMG, was quoted as stating "It's a big business. We hope it's a warning to others." Laytin was quoted as stating "Fans were spending $500 to $2,500 for fakes."
The second article appeared in the April 25, 1997, Miami Daily Business Review, addressing the lawsuit Plaintiffs filed against Gotta Have It. Oney, as associate counsel for IMG, was quoted as saying "We were just shocked. We knew there was no way they [the golfers] could be signing this stuff." The article also covered the Masters' incident, noting that IMG alerted the local law enforcement officers as to the alleged forgeries. Oney further commented that "One of the main reasons we are upset about it is when someone finds out later it is fake, they will be mad at the infringer, but they don't know who the infringer is; but a little bit of them will be mad at the golfer, and we don't want that to happen." The article also attributes the following statements to Oney: "neither Woods nor Palmer signs products to make money," and "two representatives of Gotta Have It were arrested [at the Master's Tournament]."
The event was also broadcast on the Augusta local news. Gotta Have It was specifically named in the broadcast as one of the vendors arrested for selling forged autographed pictures of Woods and Palmer. The broadcast pictured and named Mauer and Roberts as two of the arrestees. The reporter stated that the police learned of the forgeries because "representatives of Tiger Woods and Arnold Palmer" had called the District Attorney's office in Georgia.
4. The aftermath.
Defendant Matthews claims that as a result of the negative exposure on national television and a "smear campaign" branding Gotta Have It and its employees as "counterfeiters" and "con artists," his reputation has been damaged and Gotta Have It's business relationships (set out below) have suffered.
(a) Tournaments. In the past, Gotta Have It has leased vendor space at four professional golf tournaments: the J.C. Penney Classic, the GTE Sun Classic, the American Express Invitational, and the Doral-Ryder Open. Gotta Have It paid to the tournaments a fee in exchange for the right to display and sell products during the specific tournaments. The term of each contract with the J.C. Penney Classic, the GTE Sun Classic, and the American Express Invitational lasted only for the duration of the particular tournament, generally one week or loss; none of the tournaments had a multi-year contract with Gotta Have It.
The J.C. Penney Classic permitted Gotta Have It to display and sell merchandise at the 1997 and 1998 tournaments, both of which occurred after this civil action commenced and after the Classic had become aware of the Masters incident through the press.
Although Gotta Have It was allowed to set up a booth at the 1996 American Express Invitational, it was not allowed to participate in the 1997 tournament solely due to space limitations and a change in policy. No other memorabilia vendors were allowed to participate in those tournaments either.
For years, Gotta Have It has participated in the Doral-Ryder Open as a display tent sponsor. In December 1998, Gotta Have It was informed that it would not be able to participate in the 1999 Open as a decision had been made to use only a PGA Tour-licensed memorabilia company (in that case, ProTour Memorabilia). No evidence has been presented that the Open's decision was precipitated by conduct on the part of the Plaintiffs or IMG.
(b) Doral consignments. Gotta Have It has in the past, pursuant to an oral agreement, consigned merchandise to the Doral Country Club, which would display and offer for sale the merchandise in its pro shop and in its "Champions Bar and Grill." If sold, Gotta Have It would receive payment based on the purchase price. Mr. Friedlander, Director of Golf at the Doral Country Club, terminated the consignment arrangement with Gotta Have It in February 1997, two months prior to the criminal enforcement action, because of his general dissatisfaction with the agreement stemming from a billing dispute between the Doral Country Club and Gotta Have It. Gotta Have It is "not sure of the real reason" why the consignment relationship between Doral and Gotta Have It was terminated.
At no time has Friedlander or anyone from his office had contact (written or oral) with any of the Plaintiffs or with IMG regarding Gotta Have It. Thus, it is undisputed that neither the Plaintiffs nor IMG or their representatives have ever advised Friedlander not to do business with or take consignments from Gotta Have It, or that Gotta Have It was dealing in unauthorized merchandise or forged signatures.
(c) Make-A-Wish auction. Make-A-Wish is a charitable organization that provides wishes to children with terminal or life threatening illnesses. In connection with its Annual Sports Banquet fund-raiser, Make-A-Wish on at least one occasion auctioned memorabilia by Gotta Have It. Make-A-Wish had no contractual relationship with Gotta Have It other than either to pay a consignment fee for auctioned merchandise, or to return any unauctioned or unsold merchandise.
The only contact the Make-A-Wish Foundation's offices in Florida have had regarding Gotta Have It was a call from a person, the identity of whom was not known, who advised Make-A-Wish that an autographed Arnold Palmer photograph, obtained by Make-A-Wish from Gotta Have It and auctioned at the Make-A-Wish Sports Banquet, was possibly forged.
(d) Famous Photography supplier. Gotta Have It has also had an on-going business relationship with Famous Photography, from whom Gotta Have It would purchase photographs for resale. Gotta Have It's arrangement with Famous Photography was a buyer/seller relationship for photographs: typically, Gotta Have It purchased photographs from Famous Photography (though, on occasion, Famous Photography would also purchase from Gotta Have It). The only change in the business relationship between Famous Photography and Gotta Have It relevant to this lawsuit occurred in March, 1998, when Famous Photography changed its policy from automatically filling orders placed by Gotta Have It to having the president review and approve any Gotta Have It order before it would be filled. This policy has been enacted with several other Famous Photography customers in addition to Gotta Have It. Famous Photography implemented its "prior approval" policy with respect to Gotta Have It in March, 1998, for a variety of legitimate and reasonable business reasons, none of which were the result of contact from the Plaintiffs and/or IMG regarding Gotta Have It. Since the policy was instituted, Famous Photography has continued to do business with Gotta Have It.
One of the reasons for Famous Photography's change in policy was the establishment of a licensing agreement between Famous Photography and the Associated Press. Famous Photography was uncomfortable selling Associated Press pictures to Gotta Have It because it had learned that the Associated Press had sued Gotta Have It over Gotta Have It's alleged unauthorized sale of improperly obtained Associated Press pictures. Based on this knowledge, Famous Photography did not want to risk straining its agreement with the Associated Press and therefore decided not to sell Associated Press photos to Gotta Have It.
Famous Photography's second reason for instituting the "prior approval" policy was due in part to the criminal action arising out of the Masters' incident, of which it learned through the media. Famous Photography was concerned that continued dealings with Gotta Have It, in light of the arrests, would "affect[ ] our relationship with our suppliers." In addition, Famous Photography was interested in entering into and/or continuing an ongoing business relationship with the Plaintiffs. Thus, the president of Famous Photography wanted to be made aware of all dealings with Gotta Have It. It is undisputed, however, that Famous Photography has never spoken with either the Plaintiffs or IMG or their representative regarding Gotta Have It or Matthews.
(e) Edwin Watts' Golf Shop consignments. In late 1996, the Edwin Watts Golf Shops agreed to accept Gotta Have It's golf memorabilia on a consignment basis for sale in its stores. Gotta Have It's products were initially placed in the Orlando Super Store. Due to the success of the products, Edwin Watts commenced discussions with Gotta Have It to place Gotta Have It's products in its stores around the country. Subsequently, however, Edwin Watts "became aware" of the Masters incident. Because Edwin Watts could not afford to do business with someone accused of selling forgeries, it removed all of Gotta Have It's products from the display in the Orlando store, returned all unsold merchandise, and ceased all plans
(f) Gotta Have It's sales. It is undisputed that Gotta Have It's sales over the past year have nearly tripled, with sales increasing by over $1.2 million from 1996 to 1997. Specifically, Gotta Have It's 1997 sales totaled $1.740,360.16, up from $576,399.41 in 1996. Gotta Have It's per-tournament sales volume for each year from 1996 to 1998 has remained about the same, at $3,000.00 to $16,000.00 per tournament. In addition; Gotta Have It has attended roughly the same amount of tournaments each year: approximately 28 in 1996 and 30 in 1997. At the time of Roberts' deposition on May 7, 1998, Gotta Have It expected to attend between 25 and 28 tournaments in 1998. Gotta Have It's accountant, however, opined that Gotta Have It "has suffered substantial reduction in its pattern of growth in both gross receipts and net income and that its lost profits, including lost future profits, exceed $8 million." Despite this expert opinion, Defendant Matthews has not been able to identify a single lost sale attributable either to publicity surrounding the arrests at Augusta or to alleged tortious interference by the Plaintiffs or IMG.
In April 1997, Plaintiffs filed a seven-count complaint alleging: federal trademark infringement in violation of Section 32 of the Lanham Act, 15 U.S.C. § 1114 [Count I]; unfair competition/false endorsement in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(A) [Count II]; unfair competition/false advertising in violation of Section 43(c) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(B) [Count III]; federal dilution of trademark in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(c)(1) [Count IV]; Florida common law unfair competition [Count V]; Florida trademark dilution in violation of Section 495.151, Florida Statutes [Count VI]; and unauthorized publication of name and likeness in violation of Section 540.08, Florida Statutes (Florida's "Right of Publicity" statute) [Count VII]. Plaintiffs seek treble damages, an amount equal to Gotta Have It's profits, punitive damages, attorney's fees, and costs.
In response, Gotta Have It filed a counterclaim. Gotta Have It also filed a third-party complaint, adding IMG as a party-defendant. In the counterclaim and third-party complaint (as amended on August 27, 1997), Gotta Have It asserts claims for restraint of trade in violation of Section 1 of the Sherman Act [Count I]; attempted monopolization in violation of Section 2 of the Sherman Act [Count II]; conspiracy to monopolize in violation of Section 2 of the Sherman Act [Count III]; defamation [Count IV]; conspiracy to defame [Count V]; tortious interference [Count VI]; conspiracy to tortiously interfere [Count VII]; civil theft [XII]; and negligence [Count XIII]. Defendant have also filed a claim for declaratory relief to 28 U.S.C. § 2201 [Count XIV].
STANDARD OF REVIEW
Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Turnes v. AmSouth Bank, 36 F.3d 1057, 1060 (11th Cir.1994). The evidence and all reasonable factual inferences drawn from that evidence are viewed in the light most favorable to the non-movant. Allen v. Tyson Foods, Inc., 121 F.3d 642 (11th Cir. 1997).
A. Sherman Act Claims (Counts I, II and III).
Counts I and III of Gotta Have It's Third Party Complaint asserts that IMG, together with the Plaintiffs, acted to restrain trade by: (a) demanding that Gotta Have It cease engaging in business by asserting non-existent rights under the Lanham Act; (b) orchestrating and implementing the criminal arrest of Gotta Have It employees and seizing its inventory; and (c) engaging in a smear campaign designed to interfere with Gotta Have It's business relationships and to destroy its business reputation and to eliminate competition. In Count II, Gotta Have It further contends that such conduct also violates the Sherman Act's prohibition against attempted monopolization and conspiracy to monopolize.
1. Conspiracy under the Sherman Act (Counts I and III).
The Sherman Act makes it illegal to conspire, contract, or otherwise combine to restrain trade across state or national borders. 15 U.S.C. § 1. To prevail on its Sherman Act restraint of trade claims, Gotta Have It must prove "(1) an agreement to enter a conspiracy (2) designed to achieve an unlawful objective" and (3) "actual unlawful effects." U.S. Anchor Mfg., Inc. v. Rule Indus., Inc., 7 F.3d 986, 1001 (11th Cir.1993). As to the first element, "[p]roof of concerted action requires evidence that two or more distinct entities agreed to take action against a plaintiff." Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1131 (3d Cir.1995). In determining whether certain entities are distinct, the court must look to "the substance, and not the form, of economic arrangements." Id. at 1133 (citing Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 772-73, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984)). Generally, however, a corporation cannot conspire with its employees, officers or agents. Id. at 1135. See also Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir.1952)(applying the intra-corporate conspiracy doctrine).
In Siegel Transfer, a motor carrier company brought a Sherman Act claim against a shipper (Bethlehem Steel) and its subsidiaries. One of the subsidiaries of Bethlehem Steel — Carrier Express (a motor carrier/broker) — was engaged to haul Bethlehem Steel's products. Having no employees of its own, Carrier Express used commissioned, non-exclusive agents to make arrangements with owner-operators or with carriers who had access to trucks and drivers to carry the freight it was under contract to transport, A separate entity — Oak Management, Inc., — managed Carrier Express. Specifically, Oak Management was responsible for the day-to-day functions of Carrier Express and received a percentage of Carrier Express' revenues as payment for its services. A Vice President of Carrier Express (Thomas Rediehs) was also the
Oak Management also managed the operations of another carrier/broker — Rediehs Express. Rediehs Express was owned by the wife and children of Thomas Rediehs. The Operations Manager of Rediehs Express (Kermit Bryan) was also the Executive Vice President of Oak Management. Rediehs Express did some business with Carrier Express and also hauled Bethlehem Steel products out of the shipper's Indiana plant. Id.
In order to carry out its contract with Bethlehem Stool, Carrier Express entered into a contract with the plaintiffs for carrier services at Bethlehem Steel's Baltimore plant, Id. The contract was subsequently terminated, however, due to concerns over certain driving accidents the plaintiffs suffered. Another Vice President of Carrier (James Matthews) made the contract termination decision. In addition to informing the defendants' other management personnel of his decision, Matthews discussed his decision with Rediehs and Bryan. Matthews, Rediehs, Bryan, and William Van Heel, a manager with Bethlehem Steel and director of Bethlehem Steel's other subsidiary, Bethran, Inc. (also a motor carrier), then met with the plaintiffs to inform them of the contract termination, Subsequently, at Carrier Express' direction, Oak Management commenced instructing Carrier Express agents that the contract with the plaintiffs had been terminated and that the plaintiffs were no longer authorized to carry Carrier Express freight, Id. at 1129.
The plaintiffs in Siegel Transfer filed suit, alleging, inter alia, that Carrier Express, its agents in the field, and Oak Management conspired together to restrain trade in violation of Section 1 of the Sherman Act. The district court granted summary judgment in favor of the defendants on that claim, finding that plaintiffs had failed to show that two or more economic actors conspired against them. Id. at 1130. The Third Circuit Court of Appeals affirmed, holding that "Oak Management and the Carrier Express agents could not conspire with Carrier Express or with each other under section 1, or for that matter, with Bethran or Bethlehem Stool." Id. at 1135, 1140. In affirming as to Carrier Express and its field agents, the Third Circuit reasoned that:
Id. at 1135. As to Oak Management, the court in Siegel Transfer held:
In this case, the record is clear that Oney acted at all times with respect to Gotta Have It in his capacity as Vice President of ETW Corporation and AP Enterprises, not IMG. Further, although Norton and Johnston were tangentially involved in the enforcement action (essentially as information conduits), they acted solely in their capacities as personal agents for Woods and Palmer and not on behalf of IMG. In addition, Norwood was acting in the capacity of Woods' public relations manager in notifying Golf Digest of the impending criminal action in Augusta. No evidence has been presented to establish that these agents acted to further their own interests rather than the interests of their respective clients or that they acted beyond the scope of their authority. Indeed, like the parties in Siegel Transfer, IMG's interests are totally aligned with those of Woods, Palmer, ETW Corporation and AP Enterprises. Under such circumstances, an agent cannot, as a matter of law, conspire with its principal. Siegel Transfer, 54 F.3d at 1135. Further, no evidence has been presented to establish that IMG conspired with Golden Bear or Nicklaus.
2. Attempt claim under the Sherman Act (Count II).
Where conduct alleged in support of a Section 1 claim is not deemed anti-competitive, the same conduct alleged in support of a Section 2 claim must also fail. Williams v. Nevada, 999 F.2d 445, 448 (9th Cir.1993). In this case, Gotta Have It relies on the exact same conduct to support his claims under both Section 1 and Section 2 of the Sherman Act. Because the Court has found no Section 1 restraint of trade violation by IMG based upon that conduct, Gotta Have It's Section 2 claim fails as a matter of law. See also United States v. Columbia Steel Co., 74 F.Supp. 671, 680 (D.Del.1947), aff'd, 334 U.S. 495, 68 S.Ct. 1107, 92 L.Ed. 1533 (1948); United States v. Whiting, 212 F. 466, 478 (D.Mass., 1914)(noting in dicta that, while there can be an unreasonable restraint of trade which does not constitute a monopoly, there cannot be a monopoly which does not constitute an unreasonable restraint of trade).
B. Defamation Claims (Counts IV and V).
To prevail on its claim for defamation, Gotta Have It must prove the following:
Shaw v. R.J. Reynolds Tobacco Co., 818 F.Supp. 1539, 1541 (M.D.Fla.1993), aff'd, 15 F.3d 1097 (11th Cir.1994). Under Florida law, truth is an affirmative defense to a defamation claim. Glickman v. Potamkin, 454 So.2d 612, 612 (Fla. 3d DCA 1984). In addition, truth combined with good motive is a complete defense. Fla. Const. art. 1. § 4; Lipsig v. Ramlawi, 2000 WL 313534, at *10 (Fla. 3d DCA Mar. 29, 2000). In this regard, the Court finds genuine issues of material fact as to whether Oney's assertions of fake signatures are true, whether Oney was speaking in his capacity as an agent of IMG, and, if such statements were made on behalf of IMG, then whether IMG acted with good motive. The Court also finds the existence of a jury issue as to Gotta Have It's damages. The Court shall therefore deny IMG's motion as to Counts IV and V.
C. Tortious Interference Claims (Counts VI and VII).
To prevail on its claim for tortious interference, Gotta Have It must prove the following:
Ad-Vantage Tel. Directory Consultants, Inc. v. GTE Directories Corp., 849 F.2d 1336, 1348-49 (11th Cir.1987); Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126, 1127 (Fla.1985). As to the first element, the existence of an enforceable contract is not necessary; rather, "the alleged business relationship must afford the plaintiff existing or prospective legal or contractual rights." Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So.2d 812, 814 (Fla.1994)(emphasis added).
Id. at 815.
Here, the Court finds that Gotta Have It has failed to raise a genuine issue of material fact as to the first two elements of its tortious interference claim with respect to IMG. Specifically, no evidence has been presented to establish that Gotta Have It enjoyed "existing or prospective legal or contractual rights" as to any of its business relationships addressed herein, or that IMG intentionally interfered with those relationships. Accordingly, IMG's motion as to Count VI shall be granted.
Similarly, IMG's motion as to Count VII (conspiracy to tortiously interfere) shall also be granted. Florida law is well established that an actionable conspiracy requires an underlying actionable tort
D. Civil Theft (Count XII).
Under Florida law, a cause of action for civil theft "derives from two statutory sources: the criminal section setting forth the elements of theft, and the civil section granting private parties a cause of action for a violation of the criminal section." Ames v. Provident Life and Accident Ins. Co., 942 F.Supp. 551, 560 (S.D.Fla.1994), aff'd, 86 F.3d 1168 (11th Cir.1996). To establish a claim for civil theft, Gotta Have It must show that IMG knowingly obtained or used, or endeavored to obtain or to use, Gotta Have It's property with the intent to, either temporarily or permanently, deprive Gotta Have It of a right to the property or a benefit from the property, or appropriate the property to IMG's own use or to the use of any person not entitled to the use of the property. Fla. Stat. § 812.014(1). Further, "it is necessary to show not only that defendant obtained or endeavored to obtain the plaintiff's property, but that he did so with felonious intent to commit theft." Ames, 942 F.Supp. at 560. The burden of proof imposed on Gotta Have It in this regard is a clear and convincing evidence standard. Small Business Admin. v. Echevarria, 864 F.Supp. 1254, 1264 (S.D.Fla.1994). Based upon the undisputed material facts set out above, the Court finds insufficient clear and convincing evidence to prove the necessary felonious intent on the part of IMG. Hence, the Court shall grant summary judgment in IMG's favor as to Count XII.
E. Negligence Claim (Count XIII).
In its negligence claim, Gotta Have It asserts that IMG negligently destroyed Gotta Have It's property that was confiscated by the authorities in Augusta, Georgia, on April 9, 1997. IMG argues that it is entitled to summary judgment on that claim because of a complete lack of record evidence that any of Gotta Have It's property was destroyed. In response, Gotta Have It filed the declaration of Bruce Matthews, which is the only evidence in the record as regards this issue. In that declaration, Matthews states:
Matthews' Dec. at ¶ 8. Nothing in this statement, however, implicates Third-party Defendant IMG in any wrongdoing. IMG is represented by different counsel than the Plaintiffs, and Matthews states he was reviewing Plaintiffs' exhibits, not Third-party Defendant IMG's exhibits. The law is clear that, in order to survive summary judgment, the non-moving party must go beyond its pleadings. Because there is nothing in the record — other than sheer speculation — to show that IMG was in any way involved with the alleged destruction of Gotta Have It's property, the Court
Based on the foregoing analysis, it is hereby
ORDERED that Third-Party Defendant International Management, Inc.'s Motion for Summary Judgment [D.E. No. 405] is GRANTED IN PART AND DENIED IN PART. IMG's motion is DENIED as to Counts IV and V, and GRANTED as to all other Counts.