Marcura Equities FZE et al v. Schulz
ORDER denying 13 Defendant's Motion to Strike Paragraphs 80-81, 87-102, and 123-129 as well as Exhibits E, I, J, K, M, N, and O of Plaintiffs' Verified Complaint. Signed by Magistrate Judge Carol Mirando on 4/12/2018. (HJ)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MARCURA EQUITIES FZE and DADESK FZ-LLC,
Case No: 2:17-cv-508-FtM-99CM
WILLIAM JAY SCHULZ,
This matter comes before the Court upon review of Defendant William Jay
Schulz’s (“Schulz”) Motion to Strike Paragraphs 80-81, 87-102, and 123-129 as well
as Exhibits E, I, J, K, M, N, and O of Plaintiffs’ Verified Complaint.
seeks to strike certain allegations in the Complaint and exhibits attached thereto
because they reveal pre-suit settlement communications between counsel and refer
to an unrelated foreign order.
Doc. 13 at 1-2.
Plaintiffs oppose the requested relief.
Plaintiffs Marcura Equities FZE (“Marcura”) and DA-Desk FZ-LLC (“DADesk”) (collectively “Plaintiffs”) are foreign companies that have principal places of
business in Dubai, United Arab Emirates. Doc. 1 ¶¶ 1-2.
Marcura develops and
implements solutions for the global maritime shipping industries.
Id. ¶ 9.
Marcura operates through group companies, which are companies or organizations
directly or indirectly controlled by DA-Desk, controlling DA-Desk or in common
control with DA-Desk.
Id. ¶ 11. DA-Desk also is Marcura’s group company and is
the world’s largest independent provider of port cost management services.
Id. ¶ 12.
DA-Desk invested substantial resources in developing PortLog, an online
decision support system and a technology to streamline the port call process for
Id. ¶¶ 13-14.
Plaintiffs allege PortLog is exceptionally
valuable to all entities in the maritime shipping industry by making sea trade more
Id. ¶ 17.
Thus, Plaintiffs have made efforts to protect the secrecy of
PortLog by requiring employees to sign nondisclosure agreements for the technology
and the information aggregated through PortLog.
Id. ¶ 21. Plaintiffs further have
taken other protective measures and submitted a patent application to the United
States Patent Office.
Id. ¶¶ 22-24.
Schulz began working for DA-Desk as a “Project Director – PortLog” in August
Id. ¶¶ 25-26.
He was directly in charge of creating and implementing
PortLog and derived products and services.
Id. ¶¶ 27-28.
Schulz had access to
confidential information, such as internal PortLog reports and strategy documents,
and thus signed an employment agreement providing safeguards for this information.
Id. ¶¶ 30-40. During the term of his employment, Schulz also gained a high level of
influence and credibility with Plaintiffs’ customers and employees.
Id. ¶¶ 41, 44.
Thus, Schulz agreed to the non-competition and customer non-solicitation covenants.
Id. ¶¶ 45-47.
Subsequently, the parties terminated Schulz’s employment at his request, and
he agreed to a Resignation Agreement terminating his employment on February 28,
Id. ¶¶ 52-54. On or around February 17, 2017, Marcura and Schulz entered
into a Consultancy Agreement, which granted Schulz access to confidential
information and trade secrets belonging to Marcura and other affiliated companies.
Id. ¶¶ 57-58.
Schulz again agreed to restrictive covenants to protect Plaintiffs’
business interests when he signed the Consultancy Agreement. Id. ¶ 59.
In April 2017, Schulz resigned as a consultant and ended his business
relationship with Marcura.
Id. ¶ 65. After his resignation, Schulz did not return
his company laptop or Plaintiffs’ files, and he informed Plaintiffs that he accepted a
full-time position with a company providing information about the weather at
Id. ¶¶ 66-67. Plaintiffs later learned Schulz began working with
Plaintiffs’ competitor, Nisomar Ventures Limited (“Nisomar”).
Id. ¶¶ 70-71.
Nisomar’s website advertised a new method of harvesting data, which was
substantially similar to PortLog and the technology Schulz developed for Plaintiffs
that he agreed to keep confidential.
Id. ¶¶ 77-79.
On August 10, 2017, Marcura commenced litigation in the United Kingdom
against Nisomar and its chief executive officer to obtain an injunction against their
use of any confidential information Schulz disclosed to Nisomar.
Id. ¶ 80.
August 14, 2017, the High Court of Justice in the United Kingdom issued an
injunction order requiring Nisomar and its CEO to deliver Marcura’s property and
confidential information to Marcura and also preventing them from using or
disclosing Marcura’s confidential information.
Id. ¶ 81. On September 6, 2017,
Plaintiffs filed this action against Schulz. Doc. 1.
Schulz first seeks to strike allegations and exhibits related to pre-litigation
communications between the parties’ counsel through which the parties exchanged
information about their respective positions.
Doc. 1 ¶¶ 87-102, 123-129; Docs. 1-9,
1-10, 1-11, 1-13, 1-14, 1-15; Doc. 13 at 1-2.
He also seeks to strike exhibits and
allegations concerning the injunction order issued by the court in the United
Doc. 1 ¶¶ 80-81; Doc. 1-5; Doc. 13 at 2.
Plaintiffs respond Schulz’s
motion does not meet the legal standard. Doc. 29.
The Court will not strike Plaintiffs’ allegations and exhibits as requested.
Rule 12(f) of the Federal Rules of Civil Procedure allows the Court to “strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent, or
Fed. R. Civ. P. 12(f). “District courts have ‘broad discretion in
disposing of motions to strike’ under Fed. R. Civ. P. 12(f).”
Microsoft Corp. v. Jesse’s
Computers & Repair, Inc., 211 F.R.D. 681, 683 (M.D. Fla. 2002) (internal citations
Striking a pleading, however, is a “drastic remedy, which is disfavored by
Hansen v. ABC Liquors, Inc., No. 3:09-cv-966-J-34MCR, 2009 WL
3790447, at *1 (M.D. Fla. Nov. 9, 2009). The court generally does not exercise its
discretion to strike under Rule 12(f) “unless the matter sought to be omitted has no
possible relationship to the controversy, may confuse the issues, or otherwise
prejudice a party.”
Reyher v. Trans World Airlines, Inc., 881 F. Supp. 574, 576 (M.D.
Schulz first argues allegations related to counsel’s pre-suit communications
should be stricken because they are settlement communications inadmissible under
Rule 408 of the Federal Rules of Evidence. Doc. 13 at 4-6.
Rule 12(f) of the Federal
Rules of Civil Procedure, not Rule 408, governs striking allegations or exhibits from
Ruberstein Law, P.A. v. Friedman Law Assocs., P.L., No. 8:16-cv-1511-
T-36JSS, 2016 WL 9211672, at *1 (M.D. Fla. June 23, 2016); see Harris v. Torus Nat.
Ins. Co., No. 8:14-cv-1001-T-33AEP, 2014 WL 3053257, at *3 (M.D. Fla. July 7, 2014)
(“Rule 12(f) governs striking material from pleadings—not striking evidence.”).
Furthermore, “disputes over Rule 408 should be resolved as evidentiary matters with
motions in limine rather than prematurely in Rule 12(f) motions.”
Harris, 2014 WL
3053257, at *4 (alteration in original) (citations omitted); see Ruberstein Law, 2016
WL 9211672, at *1. Thus, the Court will not strike allegations or exhibits based on
Next, Schulz asserts the confidential settlement discussions do not assist
Plaintiffs in proving their allegations and are not admissible. Doc. 13 at 6-7.
Schulz claims they are immaterial and impertinent and will prejudice him.
Id. at 7-
“[C]ourts should not tamper with the pleadings unless there is a strong reason
for so doing.”
Agan v. Katzman & Korr. P.A., 328 F. Supp. 2d 1363, 1369 (M.D. Fla.
2004) (citation omitted).
Here, Schulz does not demonstrate a strong reason why
the Court should tamper with Plaintiffs’ allegations and exhibits. See id.
the Court is not examining the admissibility of evidence at this stage, which is more
appropriate for motions in limine.
See Fed. R. Civ. P. 12(f); Harris, 2014 WL
3053257, at *4 (alteration in original) (citations omitted); see Ruberstein Law, 2016
WL 9211672, at *1. Moreover, Schulz makes only general, speculative arguments
that the settlement communications will confuse the issues and require him to
address issues raised in confidential discussions and might affect jury.
Doc. 13 at 7-
Schulz also does not provide any legal authority requiring the Court to strike
allegations related to settlement communications under Rule 12(f).
Id. Thus, the
Court finds Schulz’s arguments insufficient to strike Plaintiffs’ allegations and
Lastly, Schulz seeks to strike allegations and exhibits pertaining to the
injunction order issued by the court in the United Kingdom.
Doc. 13 at 8-9.
argues the Order creates an erroneous assumption that the order has a preclusive
effect on this case and is irrelevant, immaterial and impertinent.
Id. at 8.
asserts the order bears no relation to the issues raised because the litigation in the
United Kingdom did not involve the same parties, Schulz did not have an opportunity
to appear in that litigation, and the order does not prove the allegations necessary to
establish Plaintiffs’ claims.
Id. at 8-9.
Plaintiffs respond the foreign litigation
involved related parties and facts, and Schulz does not know at this stage whether
the injunction order would be necessary to prove facts relevant to Plaintiffs’ claims.
Doc. 29 at 13-14.
The Court finds the injunction order involved related parties and facts and do
not confuse the issues because the Court is fully aware this order does not have any
preclusive effect on this case.
Furthermore, Schulz’s argument is again based on
general arguments and lacks sufficient legal support.
Doc. 13 at 8-9.
the Court will not strike the requested allegations or exhibits because they are not
“redundant, immaterial, impertinent, or scandalous.”
Fed. R. Civ. P. 12(f).
ACCORDINGLY, it is hereby
Defendant’s Motion to Strike Paragraphs 80-81, 87-102, and 123-129 as well
as Exhibits E, I, J, K, M, N, and O of Plaintiffs’ Verified Complaint (Doc. 13) is
DONE and ORDERED in Fort Myers, Florida on this 12th day of April, 2018.
Counsel of record
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