Allied Portables, LLC et al v. Youmans et al
Filing
109
ORDER denying 67 Defendants, Robin Youmans and Garden St. Portables' Motion for Partial Judgment on the Pleadings. Signed by Judge Sheri Polster Chappell on 1/21/2016. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ALLIED PORTABLES, LLC and
CONNIE ADAMSON, a Florida limited
liability company
Plaintiffs,
v.
Case No: 2:15-cv-294-FtM-38CM
ROBIN YOUMANS, GARDEN ST.
PORTABLES, LLC, WILLIAM
''BILL" OSWALD, JR. ,
BILLOPRO, LLC, LORI A.
LANGLOIS, DEBRA PALMER and
PALMER ACCOUNTING &
BOOKKEEPING SERVICE, INC.,
Defendants.
/
ORDER1
This matter comes before the Court on the Defendants, Robin Youmans and
Garden St. Portables' (Youmans) Motion for Partial Judgment on the Pleadings (Doc.
#67) filed on September 29, 2015.
The Plaintiff, Allied Portables, LLC filed its
Response in Opposition (Doc. #78) on October 13, 2015. The Motion is fully briefed and
ripe for the Court’s review.
1
Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other documents or websites. These
hyperlinks are provided only for users’ convenience. Users are cautioned that hyperlinked documents in
CM/ECF are subject to PACER fees. By allowing hyperlinks to other websites, this Court does not
endorse, recommend, approve, or guarantee any third parties or the services or products they provide on
their websites. Likewise, the Court has no agreements with any of these third parties or their websites.
The Court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that
a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the Court.
BACKGROUND
The primary business of Allied Portables is the provision of portable restrooms,
flushing toilets, hand washing stations, hand sanitization stations, climate controlled
restroom trailers, climate controlled shower trailers, and specialized restroom trailers for
agricultural use. Allied Portables was formed in 2009 by Robin Youmans and Allied
Recycling, Inc. Chester Adamson signed on behalf of Allied Recycling. Robin Youmans
owns 49% of Allied Portables and was selected to be the managing member. Connie
Adamson was substituted as a member replacing Allied Recycling, LLC in 2012.
As managing member Youmans carried out Allied Portables day to day
administrative operations with the assistance of the other Defendants in this action,
William Oswald, Jr., Lori Langlois, and Deborah Palmer. In addition, Youmans oversaw
the daily operations of Allied Portables including sales, operations, vendor and customer
relationships. Youmans via third party vendors set up and serviced Allied Portables’
computer systems. Youmans had unfettered access to all of Allied Portables’ confidential,
business, and trade secret information.
Youmans accused Chester Adamson, the husband of Connie Adamson, who owns
51% of Allied Portables, of using Allied Portables’ password to gain access to Allied
Portables’ checking account and then using the funds for his own personal benefit.
Youmans claims Chester Adamson submitted a bill to Allied Portables for $17,000.00 to
pay for the Adamson’s oldest son’s fortieth (40) birthday party in Las Vegas, Nevada.
Youmans changed the passwords to the accounts and created a new post office box to
segregate Allied Portables’ mail from Adamson’s mail. Youmans then offered to purchase
Connie Adamson’s 51% stake in Allied Portables. On August 18, 2014, Youmans states
2
that Connie Adamson sent her a text message agreeing to sell Adamson’s 51% interest
in Allied Portables.
On August 29, 2014, Youmans was scheduled to meet with Connie Adamson to
finalize the sale of Allied Portables. Youmans had a new partner Rob Webber who was
financing the Allied deal for Youmans. Instead of meeting Connie Adamson, Youmans
was met by Allied Portables’ attorneys, Gary Butler and Tom Coleman who terminated
Youmans from her position at Allied Portables. On September 3, 2014, Allied sent a letter
via Federal Express to Youmans informing her that she had been terminated as managing
member of Allied Portables, LLC. Connie Adamson took over as managing member and
has served as the sole managing member since Youmans termination. Maria Adamson,
Connie and Chester Adamson’s daughter-in-law, replaced Youmans as the manager of
Allied Portables business operations.
Allied alleges that Youmans took confidential trade secret information including
customer lists, pricing information, event schedules for local communities, and Allied
Portables 10—Rental Rate Analysis Report which contains all the information necessary
to run a portables business as well as other alleged confidential and trade secret
information. Allied alleges that Youmans and Garden St. Portables never developed their
own customer list but simply worked off Allied’s list. In addition to the trade secret
information and confidential materials, Plaintiffs allege Youmans kept her company
issued iPhone, iPad, and laptop computer. Youmans states she gave those items to her
attorney, Karl Landsteiner, and that all of Allied Portables’ electronic equipment has been
returned.
3
Allied avers Youmans conspired with Debra Palmer, Allied’s book keeper, to divert
and hold payments to reduce the company’s appearance and value as well as to divert
funds paid to Billopro and other entities controlled by Youmans and Oswald. Allied further
alleges Youmans allowed Oswald to use Allied’s utilities and facilities to operate Billopro
and used Allied’s funds to purchase insurance for herself and Oswald without
authorization. Youmans changed the mailing address for Allied receivables to allow her
to intercept Allied’s mail. Allied continues, that Youmans directed Palmer to change Allied
Portables’ payment address, electronic access credentials for Allied’s accounting
programs, and to prevent access to Allied Portables systems by Chester Adamson.
Youmans further directed Palmer to take twenty (20) Allied Portable checks in case she
needed them. Further, Youmans installed a computer in her home office using Allied’s
funds. Additionally, Youmans had a third party vendor configure a firewall and take other
unauthorized actions including changing the access credentials for the Total Activity
Control software to impede Allied’s operations in case she was terminated.
On June 25, 2015, Allied filed its First Amended Complaint (Doc. #31) against
Youmans and Garden St. Portables. Allied’s First Amended Complaint contains nine (9)
Counts. Count I for an alleged violation of the Computer Fraud and Abuse Act (CFAA)
and Count II, a violation of the Federal Stored Communications Act are the only federal
law claims in the Complaint. Plaintiffs’ state law claims include allegations of the following:
Count III violation of the Florida Privacy of Communication Act; Count IV misappropriation
of trade secrets; Count V, tortious interference with an advantageous business
relationship; Count VI, a civil conspiracy to convert (conversion); Count VII, breach of
Operating Agreement; and Count VIII, breach of fiduciary duty to Allied and Count IX
4
breach of fiduciary duty to Adamson. Youmans now moves for judgment on the pleadings
on Counts III, V, VI, VII, VIII, and IX.
STANDARD OF REVIEW
Judgment on the pleadings is proper when there are no issues of material fact,
and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 12(c);
Ortega v. Christian, 85 F.3d 1521, 1524 (11th Cir.1996). As such, a court should enter
judgment on the pleadings only “when material facts are not in dispute and judgment can
be rendered by looking at the substance of the pleadings and any judicially noticed facts.”
Whitehurst v. Liquid Envtl. Sols., Inc., 45 F. Supp. 3d 1328, 1339 (M.D. Fla. 2014) (quoting
Bankers Ins. Co. v. Fla. Residential Prop. & Cas. Joint Underwriting Ass'n, 137 F.3d 1293,
1295 (11th Cir.1998)). “For purposes of a motion for judgment on the pleadings, all the
non-moving party's pleadings are taken as true, and, if denied, the moving party's
allegations are taken as false.” Whitehurst, 45 F. Supp. 3d at 1339.
DISCUSSION
Youmans avers that Counts III, V, VI, VII, VIII, and IX are preempted by the Florida
Uniform Trade Secret Act (FUTSA), Fla. Stat. § 688.001 et. seq. arguing that FUTSA
precludes all state law causes of action based on the misappropriation of trade secrets
found in Count IV. Count IV avers in pertinent part:
the day after Youmans was terminated and removed as
managing member of Allied, she accessed the Allied
Computers, without authorization, in order to steal Allied
Confidential Information and Allied Trade Secret for Youmans'
later use at Garden St. Portables (which in fact occurred).
Youmans attached old email messages sent to/from her
former Allied email account to new email messages being
sent from the Allied email account to a personal email account
controlled by Youmans.
5
(Doc. #31, ¶ 91).
Allied argues the mere fact that allegations in a claim relate to
misappropriations of trade secrets does not call for preemption under FUTSA so long as
there are material distinctions between those other claims and the FUTSA claim.
Section 688.004 of FUTSA states that a complainant may recover damages for the
misappropriation of its trade secrets. Section 688.008 of the Act further provides that
FUTSA “displace[s] conflicting tort, restitutory, and other law of this state providing civil
remedies for misappropriation of a trade secret.” Am. Honda Motor Co. v. Motorcycle Info.
Network, Inc., 390 F. Supp. 2d 1170, 1180 (M.D. Fla. 2005) (citing Fla. Stat. §
688.008(2)(a) & (b)).
The Act specifies that this preemption does not apply to “contractual remedies,
whether or not based upon misappropriation of a trade secret” or “other civil remedies
that are not based upon misappropriation of a trade secret.” Am. Honda Motor Co., 390
F. Supp. 2d at 1180. Thus, FUTSA preempts all claims, other than claims ex contractu,
based on misappropriation of trade secrets. Id. (citing Allegiance Healthcare Corp. v.
Coleman, 232 F. Supp. 2d 1329, 1335 (S.D. Fla. 2002)). The Court must therefore
determine if the factual allegations in Counts III, V, VI, VII, VIII, and IX contain material
distinctions between the wrongdoing alleged in the trade secret claim, Count IV, and
those claims. Id. If other torts involve the same underlying factual allegations as the claim
for trade secret misappropriation, as found in Count IV, they will be preempted. Id.
Count III
Youmans argues that Count III should be preempted because Count III alleges
that she violated Fla. Stat. § 934.27 by accessing and forwarding emails from her Allied
account post termination without authorized access. Youmans claims that Count III
6
includes the same factual allegations and language as that contained in Count IV. As
such, Youmans argues Count III is preempted because it focuses solely on the alleged
misappropriation of trade secrets and is factually identical to Count IV.
Allied argues It is clear from a review of these allegations that there are material
distinctions between the allegations that comprise the claim for violation of the Privacy of
Communications Act in Count III and the allegations that comprise the FUTSA claim in
Count IV. Allied continues that the allegations of trade secret misappropriation are not
the only underlying wrong in Count III. Allied’s argument is well taken.
In this instance, Count III contains material distinctions between the wrongdoings
alleged in the trade secret claim in Count IV. In Count III, Allied alleges that Youmans
and others accessed its computer systems post termination without authorization. Count
IV alleges that Youmans used the information gained through the unauthorized access of
Allied’s computer system for her own commercial advantage. While many of the facts
are the same in Counts III and IV, the standard is whether or not Count III contains
material distinctions between the wrongdoings alleged in Count IV. As Allied argues in
its response, the alleged unauthorized access in violation of the Privacy of
Communications Act does not pertain to trade secrets or confidential information but any
information obtained from Allied’s computer system without authorization. Thus, there is
a material distinction between the wrongdoing alleged in Count III and IV. Thus, the
Motion is due to be denied as to Count III.
Count V
Count V alleges a claim for tortious interference with a business relationship.
Count V contains allegations that Youmans and others solicited agents of Allied to come
7
and work for Garden St. Portables and solicited Allied’s customers to switch over and use
the services of Garden St. Portables. Youmans argues that § 688.08 preempts Count V
because Count V is focused on misappropriation of Allied’s trade secrets. However, as
noted above, the statute actually focuses on whether or not the claims have material
distinctions between the wrongdoings alleged in the respective claims. Based upon that
standard, Count V and Count IV have clear material distinctions as Count V pertains to
Youmans’ attempts to solicit Allied’s customers and employees to come to Garden St.
Portables and does not address the claims from Count IV involving the taking of trade
secrets. In addition to the alleged trade secrets and confidential information, Count V
alleges that due to Youmans’ knowledge about Allied Business relationships, she was
able to solicit Allied’s customers and employees to do business with Garden St. Portables.
Thus, there are material differences in the facts contained in Count V other than just the
taking of confidential information. Youmans cannot be told to forget the information,
knowledge and experience she has garnered while working as the managing partner of
Allied. Therefore, even if Youmans used the alleged misappropriated trade secrets to aid
her in her solicitations, there are enough material distinctions in the facts alleging
wrongdoing that would prevent the Court from exempting Count V under Fla. Stat. §
688.08. Am. Honda Motor Co., 390 F. Supp. 2d at 1181
Count VI
Count VI alleges that Youmans conspired to violate the civil theft statute by
converting physical and electronic copies of Allied’s confidential and trade secret
information and computer equipment. Youmans argues because Count VI relates to the
same factual information as Count IV, Count VI should be preempted. The claim in Count
8
VI is not comprised of the same factual basis as the claim in Count IV. Count VI states
in pertinent part:
Specific Allied property converted by Youmans, Oswald
and/or Billopro includes, without limitation, Allied iPhones
and/or iPads, Allied laptops and/or desktops, Allied printers
and other Allied computer equipment, specific Allied funds
used to pay for unauthorized insurance policies applicable to
Youmans and/or Oswald, physical and electronic copies of
Allied Confidential Information and Allied Trade Secrets, and
blank Allied checks. Youmans and/or Oswald also directed a
vendor to release cellular phone numbers issued to Allied into
the control of Youmans and/or Oswald following their
termination as agents of Allied.
(Doc. #31, ¶122).
Count IV alleges Youmans and others gained access to Allied’s trade secrets and
confidential information by attaching the information to e-mails and then e-mailed the
information to themselves. However, the issue is whether or not the allegations of the
misappropriations of trade secrets alone compromise the underlying wrong in Count VI.
Count VI focuses primarily on the physical conversion of the hardware, iPhones, iPads
and computers issued to Youmans and others by Allied. Although Count VI does allege
that trade secrets were converted, the material distinctions in the alleged wrongdoing
between Count IV and Count VI are too great to preempt Count VI under FUTSA. As
such, the Motion to dismiss Count VI as preempted is denied.
Counts VII, VIII, and IX
Count VII alleges Youmans breached the operating agreement to which she and
Adamson were parties. The FUTSA is not applicable to breach of contract claims such
as the claim alleged in Count VII. Am. Honda Motor Co., 390 F. Supp. 2d at 1180. As
such, Count VII is not preempted by FUTSA.
9
Counts VIII and IX, allege that Youmans breached her fiduciary duty to the Allied
Portables, LLC and Adamson the LLC’s other member. Allied argues that Counts VIII
and IX can be preempted only if the alleged breach of fiduciary duty solely relates to
misapplication of trade secrets. Again, Allied’s argument is well taken. Counts VIII and
IX include allegations that Youmans breached her fiduciary duty by forming Garden St.
Portables, tortuously interfering with Allied’s business relationships, and by converting
Allied’s tangible and intangible property for her own personal gain.
Clearly, the
allegations in Counts VIII and IX are not solely based upon Youmans alleged
misappropriation of trade secrets. As such, there are material distinctions between Count
IV and Counts VIII and IX the Motion is due to be denied.
CONCLUSION
Because there are material distinctions between the allegations found in Count IV
and the Counts III, V, VI, VII, VIII and IX, the Motion for Partial Judgment on the Pleading
based upon preemption under FUTSA is due to be denied.
Accordingly, it is now
ORDERED:
Defendants, Robin Youmans and Garden St. Portables' Motion for Partial
Judgment on the Pleadings (Doc. #67) is DENIED.
DONE and ORDERED in Fort Myers, Florida this 6th day of January, 2016.
Copies: All Parties of Record
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?