CORRIGAN, District Judge.
This case is before the Court on Defendant Murphy's Motion for Summary Judgment (Doc. 228), Defendant Merwin's Motion for Sanctions (Doc. 262), Plaintiffs' Amended Third Motion for Contempt Order, Fourth Motion for Default Judgment, Fifth Motion to Strike Defendant Ryan's Defenses and Counterclaims, and Fifth Motion for Sanctions Against Defendant Ryan (Doc. 293), Defendants Ryan and Flyaway Farm and Kennels' Motion for Summary Judgment (Doc. 294), Defendant Merwin's Motion for Summary Judgment (Doc. 295), Plaintiffs' Motion for Summary Judgment against Ryan (Doc. 296), Defendant Ryan's Motion to Strike Plaintiffs' Motion for Summary Judgment (Doc. 297), Plaintiffs' Motions to Strike and Deem Admitted (Doc. 300 & 301), Plaintiff Carter's Motion for Protective Order (Doc. 315), Murphy's Motion to Strike (Doc. 317), Defendant Ryan's Motion for Leave to File a Reply to Plaintiffs' Opposition to Ryan's Motion for Summary Judgment (Doc. 320), Murphy's Motion for Leave to Reply to Plaintiffs' Response in Opposition to Murphy's Motion for Summary Judgment (Doc. 322), and Defendant Merwin's Motion to Strike Plaintiffs' Affidavits and Exhibits Submitted in Opposition to Merwin's Motion for Summary Judgment (Doc. 324). The parties have submitted voluminous filings in connection with these motions.
Pro se plaintiff Dr. Nicholas Carter ("Carter") operates plaintiff Border Collie Rescue, Inc. ("Border Collie")(collectively "plaintiffs"), a tax exempt 501(c)(3) organization specializing in training and providing Border Collie dogs to military bases and private commercial airports for the purposes of wildlife control. Specifically, the dogs chase birds and waterfowl from airport runways so that they do not strike and cause damage to aircraft.
This industry is comprised of only a few competitors. Among them are Border Collie and Rebecca Ryan d/b/a Flyaway Farm and Kennels (collectively "Ryan and Flyaway"). Carter and Ryan had a brief working relationship in 1999 when Ryan worked for Border Collie in Melrose, Florida. Shortly after severing her ties with Carter and Border Collie, Ryan founded Flyaway Farm and Kennels ("Flyaway"). Ryan and Flyaway began competing with Border Collie in this unique business. Both market their services to potential vendors via trade shows and internet websites.
Defendant Deirdre Merwin ("Merwin") began working for Border Collie in May
Plaintiffs have also sued pro se defendant, Alexandra Murphy, alleging a number of Florida common law torts against her. Since there are few facts discussing precisely how Murphy fits into this rather unique lawsuit, her overall involvement is not entirely clear.
Because the parties failed to perform meaningful discovery in this case, the Court addresses any relevant facts in conjunction with the legal analysis of each cause of action. In short, plaintiffs allege twenty-one causes of action against Ryan and Flyaway, Merwin and Murphy. Ryan and Flyaway allege four counterclaims (Doc. 58); the Court previously dismissed Count III (Intentional Infliction of Emotional Distress). (Doc. 100). Merwin alleges two counterclaims, breach of contract and quantum meruit. (Doc. 107). Defendants move for summary judgment on all of plaintiffs' claims. Plaintiffs move for summary judgment on all of Ryan and Flyaway's counterclaims. There are no motions directed to Merwin's counterclaims. The parties have filed a plethora of other motions; the Court deals with each in turn.
Plaintiffs filed an Amended Third Motion For Contempt of Court, Fourth Motion for Default Judgment, Fifth Motion to Strike Ryan's Defenses and Counterclaims, and Fifth Motion for Sanctions Against Ryan (Doc. 293) (hereinafter the "plaintiffs' sanctions motion"). Merwin filed Merwin's Motion for Sanctions against Carter and Border Collie Rescue (Doc. 262) ("Merwin's sanctions motion"). In plaintiffs' sanctions motion, plaintiffs assert that Ryan has been the impetus behind the discovery debacle that occurred in this case. The focus of Merwin's sanctions motion is Carter's refusal to have his deposition taken in this case, and the resources, fees, and Court time expended in attempting to set that deposition.
A review of the morass of filings and discovery motions reveals that all parties bear some culpability for allowing discovery and the procedural posture of this case to spiral out of control. Any further comment on the various degrees of culpability would only contribute to the rather silly spectacle that this case has become. Since the parties have wasted each other's time and the Court's time,
The Court, however, is mindful of a prior Order (Doc. 217) wherein the Court ordered Ryan to pay $326.32 to Carter for expenses incurred in bringing a motion to compel. Given the rulings herein, the Court will defer enforcing this sanctions award until the case is over to see who, if anyone, owes what to whom.
Before the Court addresses the merits of the summary judgment motions, it addresses Merwin's motion to strike plaintiffs' affidavits and exhibits submitted in opposition to Merwin's motion for summary judgment (Doc. 324). Plaintiffs filed a response. (Doc. 325). Merwin's multiple bases to strike plaintiffs' affidavits and exhibits are (1) plaintiffs' failure to disclose the affiants and exhibits under Rule 26, Federal Rules of Civil Procedure, (2) plaintiffs' failure to provide these exhibits in response to discovery requests, and (3) that plaintiffs' affidavits and exhibits offered in support of their opposition to summary judgment are replete with inadmissible evidence. Plaintiffs' positions are that Merwin's motion to strike is untimely, and that they are excused from complying with Rule 26 because other parties, including Merwin, failed to do so.
Because it appears that none of the parties made proper Rule 26 disclosures, or otherwise properly conducted themselves in discovery, the Court exercises its discretion under Rule 37, Federal Rules of Civil Procedure, and elects not to strike any parties' summary judgment affidavits. In rendering its decision at the summary judgment phase, the Court has considered all admissible evidence submitted by the parties.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In determining whether summary judgment is appropriate, a court must draw inferences from the evidence in the light most favorable to the non-movant and resolve all reasonable doubts in that party's favor. See Centurion Air Cargo, Inc. v. United Parcel Serv. Co., 420 F.3d 1146, 1149 (11th Cir.2005).
The moving party bears the initial responsibility of informing the court of the basis for its motion, and identifying those
In separate summary judgment motions (Docs. 228, 294 & 295), Defendants assert plaintiffs have failed to meet their burden of demonstrating the existence of a trade secret, or that there has been any misappropriation or damages. According to the First Amended Complaint ("Complaint") (Doc. 55), the purported misappropriation occurred when Merwin allegedly accessed "trade secrets, confidential information, foreign classified documents, and sensitive proprietary information" belonging to plaintiffs at the August 2001 Birdstrike Conference (Doc. 55, ¶¶ 38, 44, 52), and thereafter disclosed the alleged secrets to Ryan and Flyaway and Murphy. (Id. at ¶ 52).
To show misappropriation of a trade secret under Florida law, a claimant must prove: (1) the plaintiff possessed secret information and took reasonable steps to protect its secrecy and (2) the secret it possessed was misappropriated. Del Monte Fresh Produce Co. v. Dole Food Co., 136 F.Supp.2d 1271, 1291 (S.D.Fla. 2001); Fla. Stat. § 688.002. In a trade secret action, the plaintiff bears the burden of demonstrating the specific information it seeks to protect is a trade secret. American Red Cross v. Palm Beach Blood Bank, Inc., 143 F.3d 1407, 1410 (11th Cir. 1998).
Plaintiffs attempt to classify broad categories of documents and information as trade secrets, yet fail to provide supporting evidence or testimony that these items constitute trade secrets under Florida law. (Doc. 295, Ex. B, Interrog. Res. 8 & 10).
Plaintiffs speculate that since Merwin had access to Carter's laptop computer for a short period during the August 2001 Birdstrike Conference, and the Israeli Air Force proposal was on the computer at that time and thereafter ended up in the hands of the Putnam County Sheriff's Office, Mervin misappropriated plaintiffs' trade secrets. (Doc. 294, Ex. 1, Carter Dep., p. 147, line 22—p. 162, line 17). Plaintiffs further conclude, without providing any factual basis, that Merwin then disclosed these purported trade secrets to Ryan and Flyaway and Murphy, who, in turn, sent them to the Putnam County Police Department. (Id. at p. 157, lines 18-23). These conclusory allegations amount to nothing more than rank speculation, and are the type of conjecture which is insufficient to withstand a motion for summary judgment. See Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir.1990). Thus, plaintiffs fail to proffer sufficient evidence as to whether the specific information they sought to protect was a trade secret, or that Merwin, Ryan and Flyaway,
An actionable conspiracy requires an underlying tort or wrong. Palmer v. Gotta Have it Golf Collectibles, Inc., 106 F.Supp.2d 1289, 1302-03 (S.D.Fla.2000) (citing Ovadia v. Bloom, 756 So.2d 137, 140 (Fla. 3d DCA 2000) (citations omitted)). "An act which does not constitute a basis for an action against one person cannot be made the basis of a civil action for conspiracy." Buckner v. Lower Fla. Keys Hosp.
Plaintiffs make broad allegations of civil theft and conversion against Merwin relating to "property" she failed to return to plaintiffs when she left their employ. Regardless of whether Florida or Delaware law is applied to these allegations, the record illustrates that plaintiffs fail to proffer sufficient evidence that Merwin wrongfully took or detained plaintiffs' "property." The remaining civil theft and conversion allegations concern the dog named "Fly." The parties disagree as to which state's law (Delaware or Florida) applies to the purported civil theft and conversion of Fly.
Plaintiffs contend that since this court, at the motion to dismiss phase (Doc. 101), denied Merwin's motion to dismiss for lack of personal jurisdiction, Florida law, and not Delaware law, applies to the alleged abduction of Fly. Merwin suggests that since the act giving rise to the torts occurred in Delaware, Delaware law applies. Florida uses the significant relationships test to determine conflicts of law sounding in tort. Bishop v. Florida Specialty Paint Co., 389 So.2d 999, 1001 (Fla.1980); Restatement (Second) of Conflict of Law § 145.
Applying the factors set forth in Bishop and §§ 145 and 146 of the Restatement, the Court concludes that Florida law applies to this claim. While Fly was apparently removed from the Air Force base in Dover, Delaware, plaintiffs maintain their business operations in Florida, and the contractual agreement that governed Merwin's employment with Border Collie stipulates that Florida law applies to any disputes arising thereunder. While the alleged removal of Fly may or may not fall under the purview of the employment agreement, the contract itself evinces that Florida was the epicenter of Merwin's relationship to plaintiffs. Further, the economic harm, if any, resulting in the removal of Fly from the Dover Air Force Base will presumably be felt in plaintiffs' overall business operations, which were located in Florida at the time of the purported incident.
Section 772.11, Florida Statutes, requires a showing of "felonious intent" in order to hold a party liable for civil theft. Lewis v. Heartsong, Inc., 559 So.2d 453,
"[C]onversion is an unauthorized act which deprives another of his property permanently or for an indefinite time." Shelby Mut. Ins. Co. of Shelby, Ohio v. Crain Press, Inc., 481 So.2d 501, 503 (Fla. 2d DCA 1985). Under Florida law, a conversion claim is distinct from a statutory civil theft claim because the law does not require felonious intent to commit conversion. Stearns v. Landmark First Nat. Bank of Fort Lauderdale, 498 So.2d 1001, 1002 (Fla. 4th DCA 1986).
Plaintiffs submit the affidavit of Mildred Tanner, who states that she owned Fly and in the summer of 1998 relinquished her ownership interest in Fly to Border Collie. (Docs. 312 & 313, Tanner Aff.).
The basis of Border Collie's claim for breach of a fiduciary duty against Merwin is difficult to discern; Border Collie provides no detail in the First Amended Complaint concerning this claim, and merely states in its response to Merwin's motion that "Merwin had a duty to refrain from committing torts against the Plaintiffs by badmouthing their services. . . ." (Doc. 313, p. 7). Merwin asserts that since Border Collie has failed to articulate a loss separate from the breach of contract claim, the economic loss rule bars recovery.
The elements of a breach of fiduciary duty claim are: (1) the existence of a fiduciary duty; (2) the breach of that duty; and (3) damage proximately caused by that breach. Gracey v. Eaker, 837 So.2d 348, 353 (Fla.2002) (citations omitted). The Court determines Border Collie has failed to show any fiduciary duty that Merwin purportedly breached, and thus does not reach the economic loss rule issue. Summary judgment is due to be granted to Merwin on Count VII (breach of fiduciary duty).
Merwin moves for summary judgment on Border Collie's claim for breach of contract; Merwin asserts Border Collie fails to establish a prima facie case for breach of contract because it fails to set forth facts showing it incurred any damages due to Merwin's purported breach of her Employment Agreement and Non-Compete and Confidentiality Agreement. Border Collie states that it has sufficiently set forth facts in the Nicholas Carter affidavit showing Border Collie suffered damages due to the alleged breach.
Under Florida law, the elements of a breach of contract claim are (1) a valid contract, (2) a material breach, and (3) damages. Abruzzo v. Haller, 603 So.2d 1338, 1340 (Fla. 1st DCA 1992). A material
Carter's assertions in his affidavit concerning Merwin's purported actions of stealing plaintiffs' proprietary information and subsequently divulging it are entirely conjectural and fail to establish any breach or any damages Border Collie has suffered as a result. (Doc. 312, Carter Aff.). However, .viewing the evidence in the light most favorable to the plaintiffs, the portions of the breach claim on which the Court deems there to be a triable issue are whether Merwin breached the Employment Agreement by terminating her employment early and going to work for Ryan and by allegedly failing to return Fly to plaintiffs at the conclusion of her employment with Border Collie. Thus, summary judgment to Merwin is due to be granted in part and denied in part on this claim.
Plaintiffs claim Ryan and Flyaway tortiously interfered with their alleged business relationships with Southwest Florida International Airport and Lee County Port Authority ("SWFIA") and Daytona Beach International Airport ("DBIA"), and tortiously interfered with Border Collie's contractual relationships with Merwin and Dover Air Force Base ("Dover AFB"). To establish a claim for tortious interference with an advantageous business or contractual relationship, a party must prove: (1) the existence of a business relationship or contract; (2) the defendant's knowledge of the relationship; (3) an intentional and unjustified interference with that relationship by the defendant which induces or otherwise causes nonperformance; and (4) damages resulting from the tortious interference. Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So.2d 812, 814 (Fla.1994).
Ryan and Flyaway submit, inter alia, that plaintiffs have proffered no evidence that they intentionally and unjustifiably interfered with plaintiffs' business relationship with SWFIA. Plaintiffs retort that Ryan and Flyaway's alleged defamatory remarks dissuaded SWFIA from consummating a second contract with Border Collie. Plaintiffs merely submit the Carter affidavit which makes the conclusory leap that SWFIA's determination to accept Ryan and Flyaway's bid, rather than plaintiffs', was the result of tortious interference. While plaintiffs assert that Ryan and Flyaway made "direct contact" to SWFIA airport officials to interfere with the purported business relationship, plaintiffs submit no evidence concerning precisely how this occurred.
For the same reasons set forth in the preceding section, summary judgment is due to be granted to Ryan and Flyaway on Count X (tortious interference—DBIA). Plaintiffs submit no evidence that Ryan and Flyaway intentionally and unjustifiably interfered with plaintiffs purported business relationship with DBIA. These allegations similarly amount to nothing more than rank speculation and conjecture, as they are not buttressed by facts. See id. Again, Ryan and Flyaway proffer the affidavit of Rebecca Bishop, the Purchasing Agent for Volusia County responsible for bird control dogs at DBIA, who affies that the County followed, its established merit-based procedures in awarding the contract to Ryan. (Doc. 294, Ex. 6).
Ryan and Flyaway assail Border Collie's claim in Count XI that they tortiously interfered with Border Collie's non-compete and confidentiality agreement with Merwin, and asserts there is no evidence that Merwin left Border Collie's employ due to any such interference. Border Collie points out that Ryan was aware of Merwin's contractual relationship with Border Collie and had her attorney review Merwin's noncompete agreement for enforceability, which, according to Border Collie, is direct evidence of tortious interference.
Even though the enforceability of Merwin's non-compete agreement is indeed dubious, a claim for tortious interference can lie even if the contract forming the basis of the relationship is void and unenforceable. See United Yacht Brokers, Inc. v. Gillespie, 377 So.2d 668, 672 (Fla. 1979). While the evidence Border Collie proffers on this claim is entirely circumstantial, viewing the evidence in the light most favorable to Border Collie, there is a genuine issue of material fact as to whether Ryan and Flyaway tortiously interfered with Border Collie's contractual relationship with Merwin. Thus, summary judgment for Ryan on Count XI (tortious interference—Merwin) is due to be denied.
Ryan and Flyaway move for summary judgment on Count XII (tortious interference with contracts—Dover AFB) on the basis that Border Collie cannot establish it had an understanding with Dover AFB that it would re-hire Border Collie when
Border Collie styles this claim as a tortious interference with contractual relationships claim, but an analysis of the substance of the claim shows that it is a tortious interference with business relationships claim. Again, Border Collie's claim for tortious interference hinges on whether there was an intentional or unjustified interference with the relationship. Border Collie's speculative assertions that Ryan and Flyaway defamed Border Collie in procuring the Dover contract constitute insufficient evidence to create a factual dispute. There is no evidence as to the nature of any defamatory remarks or the effect that these remarks had on the award of the Dover contract. To the contrary, Ryan and Flyaway present undisputed facts via affidavit from Donald Hall, the recently retired United States Air Force Master Sergeant and Flight Safety Non-Commissioned Officer at Dover AFB, who was intimately involved with the awarding of the 2002 contract at issue. (Doc. 294, Ex. 7). Master Sergeant Hall affies that not only was Ryan awarded the contract according to federal regulations, but that Ryan made no derogatory comments concerning any other bidder. (Id. at ¶¶ 3, 5). Thus, summary judgment for Ryan and Flyaway is likewise appropriate on Count XII.
Murphy asserts she is entitled to summary judgment on plaintiffs' claim for tortious interference with business relationships (DBIA) because plaintiffs fail to establish the elements of the prima facie case. As the basis for this claim, plaintiffs point to a number of statements and actions purportedly attributable to Murphy concerning Border Collie's alleged nefarious conduct. Even assuming plaintiffs had a cognizable business relationship with DBIA, they fail to set forth any facts correlating Murphy's purportedly untoward actions with DBIA's decision not to award a contract to plaintiffs. Thus, summary judgment is due to be granted to Murphy on Count XIII.
Merwin moves for summary judgment on Count XIV on the grounds that Border Collie fails to show a breach of contract giving rise to a tortious interference with contractual relationships claim. Merwin further asserts that to the extent the claim is construed as a tortious interference with business relationships claim, Border Collie has failed to show it was eligible for the Dover AFB contract, or that Merwin engaged in any malicious or unjustified interference with Border Collie's relationship with Dover AFB. Border Collie asserts that Merwin's alleged derogatory comments to Dover AFB officials and the purported misrepresentation as to Fly's death suffices to create a factual dispute as to whether this claim lies.
While it is not entirely clear whether Border Collie asserts a claim for tortious interference with contractual relationships or tortious interference with business relationships, the Court will treat the claim as the latter even though Border Collie styles it as the former. This is because the
Border Collie's assertions that Merwin's alleged comments or actions resulted in Ryan procuring the 2002 Dover contract are unsupported. Border Collie goes so far as to state that Master Sergeant Hall's affidavit in support of Ryan's motion for summary judgment "demonstrates Merwin's interference with the relationship and resulting damage. . . ." (Doc. 312). The Court's review of the Hall affidavit shows this assertion is without merit. Even assuming Border Collie asserts a cognizable business relationship with Dover AFB, it fails to present facts suggesting any malicious or unjustified interference by Merwin. Thus, summary judgment is due to be granted to Merwin on Count XIV.
Because Ryan and Flyaway and Murphy prevail on plaintiffs' claims for tortious interference with business relationships with DBIA (Counts X and XIII), they prevail on this conspiracy count. See Buckner, 403 So.2d at 1027.
For the reasons previously set forth, summary judgment is due to be granted to all defendants on Count XVI.
Ryan and Flyaway move for summary judgment on Count XVII (violation of Lanham Act, 15 U.S.C. § 1125(a)) positing plaintiffs fail to proffer sufficient facts establishing the elements of a Lanham Act violation. Plaintiffs contend Ryan and Flyaway violated the Lanham Act because its promotional materials contain misleading advertisements that Ryan trained border collies that were actually trained by plaintiffs.
To prevail on a claim for false advertising under 15 U.S.C. § 1125(a)(1)(B), a plaintiff must adduce evidence of the following: (1) the advertisements of the opposing party are false or misleading; (2) the advertisements actually deceived consumers or had the tendency to deceive a substantial portion of the targeted audience; (3) the deception is material, meaning it is likely to influence purchasing decisions; (4) the defendant's advertised products traveled in interstate commerce; and (5) the plaintiff has been or is likely to be injured as a result of the false or misleading advertisements by causally related declining sales or loss of goodwill. Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256, 1260-61 (11th Cir.2004); Tire Kingdom, Inc. v. Morgan Tire & Auto, Inc., 915 F.Supp. 360, 364 (S.D.Fla.1996), aff'd 136 F.3d 139 (11th Cir.1998). To survive a motion for summary judgment, plaintiffs must support each element of the Lanham Act claim with more than mere allegations. See McLaughlin v. City of LaGrange, 662 F.2d 1385, 1388 (11th Cir.1981).
It is once again difficult to discern the nature of plaintiffs' claim, in that they apparently plead in the alternative that Ryan and Flyaway's statements in promotional materials are both false and misleading. There are two distinct types of Lanham Act claims; those based on
After reviewing Ryan and Flyaway's promotional materials appended to plaintiffs' summary judgment response, albeit unauthenticated, it appears the alleged representations are more in line with implicit falsities, rather than literal falsities.
Since this claim is an "implicit falsity" claim, plaintiffs must proffer evidence of actual deception. See Hickson, 357 F.3d at 1261. Plaintiffs, however, fail to show even a scintilla of evidence that any alleged representations (1) actually deceived consumers, much less had a tendency to deceive, or (2) were material and likely to affect purchasing decisions. Thus, summary judgment is due to be granted to Ryan and Flyaway on Count XVII (Lanham Act).
Ryan moves for summary judgment on Count XVIII (defamation and trade libel) stating that even assuming statements made to Putnam County police were defamatory, they are nevertheless clothed in a qualified privilege. Plaintiffs state, inter alia, there is an issue of fact whether Ryan falsely initiated a police investigation into Border Collie in late 2001.
In opposition to summary judgment, plaintiffs submit a jumble of e-mails, most of which Ryan did not even author, newspaper articles, and police reports in an attempt to create a factual dispute as to whether Ryan's statements were defamatory. (Doc. 312, Exs. E, L, and M). Plaintiffs fail, however, as the undisputed facts show that Sergeant Michael Ogelsbee of the Putnam County Sheriff's Office initiated an investigation into Nicholas Carter and Border Collie in September 2001, contacted Ryan concerning her experiences at Border Collie, and requested that she send a notarized letter setting forth the information she conveyed orally. (Doc. 294, Ex. 10, ¶¶ 3-5). That letter, appended to plaintiffs' response to Ryan's motion for summary judgment (Doc. 312, Ex. AA), sets forth Ryan's account of Carter's treatment of the dogs during her employ. Though plaintiffs submit a copy of the letter, they fail to set forth record evidence that it was the product of express malice. Plaintiffs have thus failed to carry their burden of overcoming the qualified privilege.
While Ryan specifically addresses only the defamation portion of Count XVIII in her motion, it is clear she intended to move for summary judgment on all claims pending against her. Thus, to the extent plaintiffs assert a trade libel claim in Count XVIII, the court likewise finds no triable issue of fact on that claim.
To state a valid claim of trade libel, plaintiffs must allege: (1) a falsehood; (2) has been published, or communicated to a third person; (3) when the defendant-publisher knows or reasonably should know that it will likely result in inducing others not to deal with the plaintiff; (4) in fact, the falsehood does play a material and substantial part in inducing others not to deal with the plaintiff; and (5) special damages are proximately caused as a result of the published falsehood. Stewart Title Guar. Co. v. Title Dynamics, Inc., 2005 WL 2548419 (M.D.Fla.2005) (unpublished opinion) (citations omitted).
For the reasons previously set forth, Merwin is entitled to summary judgment on Count XIX. Plaintiffs similarly fail to assert' sufficient facts to overcome Merwin's qualified privilege. Even assuming plaintiffs properly assert a trade libel claim against Merwin, they fail to provide any evidentiary link between Merwin's statements to Sergeant Ogelsbee and whether those statements materially affected any third party's desire to do business with Border Collie.
Plaintiffs assert yet another defamation based claim against Merwin; this claim is for slander. Merwin contends that plaintiffs' slander claims are barred because plaintiffs have failed to put forth evidence that Merwin made any oral statements constituting slander. Even though Count XX is premised on allegedly slanderous comments Merwin made to the Putnam County Police Department, plaintiffs now apparently change course. In the response to summary judgment, plaintiffs attempt to create an issue of fact that the alleged slanderous comments were made to Dover AFB concerning Fly's insufficient care and purported death. (Doc. 312). Once again, plaintiffs fail to proffer any admissible evidence showing any such statements were made. Instead, plaintiffs rely on the affidavits of Nicholas Carter and Emily Ann Wheeler, a former Border Collie employee, who assert that Dover AFB officials told them that Merwin made comments to the officials concerning Fly's death and plaintiffs' lack of sufficient care for Fly and other dogs. (Doc. 312, Carter Aff., ¶ 3, Wheeler Aff., ¶¶ 6, 7).
Because Ryan and Merwin prevail on the predicate defamation and trade libel claims, summary judgment is appropriate on this conspiracy claim. See Buckner, 403 So.2d at 1027.
Plaintiffs move for summary judgment on Ryan's counterclaim for violations of
Ryan and Flyaway's counterclaim is based solely on alleged false or misleading representations on plaintiffs' website and in promotional materials plaintiffs disbursed at a 2003 trade show. Thus, the alleged oral statement made to Roberts at the Birdstrike Conference raised for the first time in opposition to summary judgment cannot now serve as a basis to avoid summary judgment.
Plaintiffs' motion for summary judgment on the ground that Ryan and Flyaway cannot show any evidence of damages based on representations on the Border Collie website
The Court finds an issue of material fact as to whether the Border Collie website statements that (1) SWFIA was a "current" client in 2004, (2) all Border Collie dogs are trained at Dover Air Force Base, and (3) various dogs were "currently" working at Dover AFB in 2004, are literally false. Damages are thus presumed, and Ryan and Flyaway need not show evidence of damages to obtain money damages or permanent injunctive relief. Thus, summary judgment is due to be denied to plaintiffs on all literal falsehood claims.
The remainder of the website statements, however, fall in the category of implicitly falsities.
Though Ryan and Flyaway submit the Roberts affidavit attempting to show damages due to Border Collie's alleged false and misleading statements, a close reading shows that the statements Carter purportedly made about Ryan and Flyaway, and not the promotional materials, caused Roberts to not recommend Ryan and Flyaway to his superiors at Windsor Airport.
Plaintiffs move for summary judgment on Ryan's defamation and trade libel claim alleging there is no evidence that Nicholas Carter made any defamatory statement, or that Ryan was damaged by any such statement. In opposition, Ryan asserts there is a factual dispute on three separate grounds under Count II:(1) Carter's oral statements to Roberts at the Birdstrike Conference; (2) the letter distributed to Ryan and Flyaway's clients; and (3) Carter's 1999 statement that Ryan stole a truck.
Ryan submits the Roberts affidavit, which provides that Carter told Roberts that Ryan engaged in "poor dog training",
Ryan and Flyaway have also adduced evidence concerning a letter Carter purportedly sent on Volusia County letterhead under the guise of an anonymous Volusia County "employee" to various vendors with whom Ryan had business relationships. (Doc. 311, Ex. 15). This letter essentially disparages Ryan and Flyaway's performance at DBIA.
Ryan and Flyaway have shown there to be a factual dispute as to whether Carter authored this letter, masqueraded its origin, and sent it to Ryan's clients. Further, while plaintiffs move on the grounds that Ryan has failed to proffer damages, there is no requirement to show special damages flowing from the alleged slanderous and libelous actions. See Spears, 848 So.2d at 1179 (when words published concerning a person tend to degrade him, bring him into ill repute, destroy confidence in his integrity, or cause other like injury, such language is defamation per se); see also Hoch v. Rissman, Weisberg, Barrett, et al., 742 So.2d 451, 457 (Fla. 5th DCA 1999) (general damages are presumed in slander per se actions); Barry College v. Hull, 353 So.2d 575, 578 (Fla. 3d DCA 1977) (words amounting to libel per se are actionable in and of themselves without allegations of special damages).
This evidence, coupled with Carter's statement during his deposition that Ryan
At the motion to dismiss phase, this Court ruled that, while Florida does not recognize a common law tort for sexual harassment, Count IV, as pled, was sufficient. to state a claim for sexual harassment under Title VII of the Civil Rights Act of 1964. (Doc. 100). Plaintiffs now move for summary judgment on that claim asserting, inter alia, that Ryan's claim is barred due to her failure to file a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). Ryan admits in her response that her claim is "beyond the applicable statute of limitations." (Doc. 296, p. 19). The parties are correct that Ryan's failure to exhaust her administrative remedies and timely file a charge of discrimination precludes her from proceeding on this claim. See 42 U.S.C. § 2000e-5(e); see also Grier v. Sec'y of Army, 799 F.2d 721, 724 (11th Cir.1986); Cantrell v. Jay R. Smith Mfg. Co., 248 F.Supp.2d 1126, 1133-35 (M.D.Ala.2003). Thus, summary judgment on Count IV (sexual harassment) of Ryan's counterclaims is due to be granted.
Plaintiffs' Motion for a Protective Order (Doc. 315) requests that if certain alleged trade secrets and proprietary information are to be disclosed in this litigation, that it not become public record in this Court's proceedings. Finding no proper showing of the need for sealing, plaintiffs' motion is due to be denied.
Accordingly, it is hereby
1.) Merwin's Motion to Strike Plaintiffs' Affidavits and Exhibits in Opposition to Merwin's Motion for Summary Judgment (Doc. 324) is
2.) Merwin's Motion for Summary Judgment (Doc. 295) is
3.) Ryan and Flyaway's Motion for Summary Judgment (Doc. 294) is
4.) Murphy's Motion for Summary Judgment (Doc. 228) is
6.) Ryan's Motion To Strike Plaintiffs' Motion For Summary Judgment (Doc. 297) is
7.) Plaintiffs' Motions to Strike and Deem Admitted (Does. 300 & 301) are
8.) Plaintiffs' Motion for Protective Order (Doc. 315) is
9.) Murphy's Motion to Strike (Doc. 317) is
10.) Ryan's Motion for Leave to File a Reply to Plaintiffs' Opposition to Ryan's Summary Judgment (Doc. 320) is
11.) Murphy's Motion for Leave to Reply to Plaintiffs' Response in Opposition to Murphy's Motion for Summary Judgment (Doc. 322) is
12.) Merwin's Motion for Sanctions against Carter and Border Collie (Doc. 262) is
13.) Plaintiffs' Amended Third Motion for Contempt Order, Fourth Motion for Default Judgment, Fifth Motion to Strike Defendant Ryan's Defenses and Counterclaims, and Fifth Motion for Sanctions Against Defendant Ryan (Doc. 293) is
14.) Plaintiffs, Ryan and Flyaway, and Merwin are further Ordered to appear telephonically before this Court on April 28, 2006 at 10:00 a.m. for a status conference, during which the Court will discuss the procedural posture of this case,