Skypoint Advisors, LLC. v. 3 Amigos Productions LLC. et al

Filing 151

ORDER granting in part and denying in part 136 motion to dismiss. Count Two of the Counterclaims is dismissed without prejudice as to defendants 3 Amigos, Crawford, and BlackburnSteele, and Count Three of the Counterclaims is dismissed without prejudice as to defendants Zaroui, Crawford, and BlackburnSteele. Defendants shall have FOURTEEN (14) DAYS from the date of this Opinion and Order to file amended counterclaims. Signed by Judge John E. Steele on 1/7/2020. (FWH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SKYPOINT ADVISORS, LLC.,
Plaintiff/Counter
Defendant,
v.

Case No:

2:18-cv-356-FtM-29MRM

3 AMIGOS PRODUCTIONS LLC.,
BLACKBURNSTEELE LLC., ISSA
ZAROUI, and MARK C CRAWFORD,
Defendants/
Counterclaimants.

3 AMIGOS PRODUCTIONS LLC.,
BLACKBURNSTEELE LLC., ISSA
ZAROUI, and MARK C CRAWFORD,
Third-Party
Plaintiffs,
v.
DENIS DRENI,
Third-Party
Defendant.

ORDER AND OPINION
This matter comes before the Court on plaintiff’s Motion to
Dismiss Counterclaims (Doc. #136) filed on October 21, 2019.

The

defendants filed an Opposition (Doc. #137) on November 4, 2019.
With the permission of the Court (Doc. #147), a Reply (Doc. # 146)
and a Sur-Reply (Doc. #149) were filed.

For the reasons set forth

below, the motion is granted in part and denied in part.

I.
Plaintiff Skypoint Advisors, LLC (Skypoint) is a Florida
limited

liability

company

whose

defendant Denis Dreni (Dreni).

members

include

third-party

(Doc. #93, p. 1.)

Skypoint’s

Third Amended Complaint (Doc. #93) against 3 Amigos Productions,
LLC, BlackburnSteele, LLC, Issa Zaroui, and Mark Crawford, 1 alleges
the

defendants

made

misrepresentations

invest in a film project.

to

induce

(Id. pp. 2, 4-26.)

Skypoint

to

The Third Amended

Complaint asserts six claims, including a claim that defendants
violated Section 10(b) of the Securities Exchange Act.

(Id. pp.

32-47.)
In August 2019, the four defendants filed their Counterclaims
(Doc.

#122)

asserted

against

claims

of

Skypoint

and

defamation,

Dreni.
violation

The
of

Counterclaims
the

Stored

Communications Act, 18 U.S.C. § 2707, and tortious interference with
a contract against Skypoint and Dreni jointly and severally.
#122, pp. 26-29.)

(Doc.

Skypoint seeks to have the three counterclaims

dismissed for failure to state a claim or lack of subject matter
jurisdiction.

1

Per the Third Amended Complaint, BlackburnSteele and Zaroui
are managing members of 3 Amigos, and Crawford is the managing
member of BlackburnSteele. (Doc. #93, p. 2.)

- 2 -

II.
A. Failure to State a Cause of Action
Skypoint argues the second and third counterclaims fail to
state a cause of action and therefore should be dismissed.
#136, p. 2.)

(Doc.

The Court agrees in part.

Under Federal Rule of Civil Procedure 8(a)(2), a complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citation omitted).

To survive dismissal, the factual allegations

must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”

Id. at 555; see also Edwards v.

Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
“more

than

accusation.”

an

unadorned,

Ashcroft

v.

This requires

the-defendant-unlawfully-harmed-me
Iqbal,

556

U.S.

662,

678

(2009)

(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to the plaintiff, Erickson v.
Pardus, 551 U.S. 89 (2007), but “[l]egal conclusions without
adequate factual support are entitled to no assumption of truth,”
Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations

- 3 -

omitted).

“Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678.
consistent

with

a

facially plausible.
1337

(11th

Cir.

Factual allegations that are merely

defendant’s

liability

fall

short

of

being

Chaparro v. Carnival Corp., 693 F.3d 1333,

2012)

(citations

omitted).

Thus,

the

Court

engages in a two-step approach: “When there are well-pleaded
factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to
relief.”

Iqbal, 556 U.S. at 679.

(1)

Count Two:

Violation of Stored Communications Act

Count Two alleges Skypoint and Dreni violated the Stored
Communications Act, 18 U.S.C. § 2707, when Dreni, or someone acting
on his behalf, accessed defendant Zaroui’s email account in order
to view its contents and copy materials therein.
28.)

(Doc. #122, p.

Count Two asserts that the copied materials included “a copy

of Zaroui’s U.S. passport as well as business-related information
such as names and contact information of business contacts.”
(Id.)
Skypoint argues this count should be dismissed because (1)
defendants fail to sufficiently allege that Skypoint and Dreni
intentionally accessed the email account without authorization,
and (2) the count is premised upon false factual allegations.
(Doc. #136, pp. 10-13.)

In its Reply, Skypoint also suggests the

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count

should

be

dismissed

as

to

3

Amigos,

Crawford,

and

BlackburnSteele because they had no privacy interest in Zaroui’s
personal email account.

(Doc. #146, p. 6.)

The Stored Communications Act (SCA) is violated when anyone
“intentionally accesses without authorization a facility through
which an electronic communication service is provided; ... and
thereby obtains ... access to a wire or electronic communication
while it is in electronic storage in such system.”
2701(a).
an

18 U.S.C. §

A civil action is available for such a violation.

exception

electronic

not

applicable

communication

to

this

service,

case,

“any

subscriber,

or

With

provider
other

of

person

aggrieved by any violation of this chapter in which the conduct
constituting

the

violation

is

engaged

in

with

a

knowing

or

intentional state of mind may, in a civil action, recover from the
person or entity ... which engaged in that violation such relief
as may be appropriate.”

18 U.S.C. § 2707(a).

may

or

include

reasonable

equitable

attorney

fees

declaratory

and

litigation

Appropriate relief

relief,
costs.

damages,
18

and

U.S.C.

§

2707(b).
An action for violation of the Stored Communications Act may
only be brought by a provider of electronic communication service,
a subscriber, or a person who is “aggrieved” by the alleged
misconduct of the defendant(s).

There is no allegation that any

of the four defendants were a provider of electronic communication

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service or a subscriber.

Additionally, there is no allegation

that 3 Amigos, Crawford, or BlackburnSteele had their own emails
accessed,

or

that

they

personal email account.

had

any

privacy

interest

in

Zaroui’s

Because there is no plausible basis to

find any of these three to have been aggrieved, Count Two of the
Counterclaim is dismissed as to them.
To state a claim under the Stored Communications Act, an
aggrieved party must sufficiently allege two elements: (1) the
defendant intentionally accessed without authorization a facility
through which an electronic communication service is provided or
intentionally exceeded an authorization to access that facility,
and (2) the defendant obtained, altered, or prevented authorized
access to a wire or electronic communication while it was in
electronic storage in such system.

Stirling Int’l Realty, Inc.

v. Soderstrom, 2015 WL 2354803, *4 (M.D. Fla. May 15, 2015) (citing
Snow v. DirecTV, Inc., 450 F.3d 1314, 1321 (11th Cir. 2006)); see
also Vista Mktg., LLC v. Burkett, 812 F.3d 954, 964 (11th Cir.
2016) (holding that unauthorized accessing of emails stored by an
online host violates the Stored Communications Act).
Skypoint

argues

that

the

defendants

have

sufficiently allege the intentional access element.
pp.

10-11.)

The

Court

disagrees,

and

finds

that

failed

(Doc. #136,
there

sufficiently plausible allegations of intentional access.

- 6 -

to

are

Defendants

allege

that

Dreni’s

and

Skypoint’s

access

to

Zaroui’s email account was done willfully and intentionally to
harm the defendants, and to use the information therein against
them.

(Doc.

#122,

pp.

28-29.)

To

support

this

allegation,

defendants have provided screenshots of text messages allegedly
sent by Dreni to Crawford which (1) reference various individuals,
including one named “Vitali,” and (2) contain a photograph of
Zaroui’s passport.

(Doc. #122, pp. 22-23.)

The defendants allege

that Dreni accessed Zaroui’s email account and obtained business
contact information (such as Vitali’s) and documents (such as the
passport).

(Id.)

The Court thus finds the defendants allegation

of intentional access is not a “naked assertion” devoid of “further
Iqbal, 556 U.S. at 678.

factual enhancement.”

Construing the

allegations and drawing all reasonable inferences in the light
most

favorable

to

the

non-moving

party,

the

Court

finds

the

defendants allege sufficient facts to satisfy the first element
under the Stored Communications Act.
Skypoint
dismissed

next

because

argues
it

is

the

second

refuted

by

counterclaim
a

declaration

provided, which is attached to Skypoint’s motion.
11-13.)

should

be

Dreni

has

(Doc. #136, pp.

In the declaration, Dreni states that after this action

was initiated, he received an email from non-party Lul Vulashi
expressing

interest

in

joining

the

lawsuit.

(Id.

p.

20.)

According to Dreni, attached to the email was an image of Zaroui’s

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passport, and Dreni attests that this is how he received the
document.

(Id. p. 21.)

Dreni states that neither he nor Skypoint

accessed,

attempted

access,

to

Zaroui’s email account.

(Id.)

or

directed

anyone

to

access

Attached to the declaration is a

copy of the email, as well as the passport attachment.

(Id. pp.

23-24.)
Skypoint argues that Dreni’s declaration “makes it clear that
no violation of the [Stored Communications Act] took place” and,
therefore, the claim should be dismissed.

(Id. p. 13.)

While

Skypoint acknowledges that the court typically considers only the
complaint and the attached exhibits when deciding a motion to
dismiss, Skypoint argues that the Court may consider Dreni’s
declaration pursuant to Horsley v. Feldt, 304 F.3d 1125 (11th Cir.
2002).

In Horsley, the Eleventh Circuit held a document attached

to a motion to dismiss may be considered by the court without
converting the motion into one for summary judgment only if the
attached document is “(1) central to the plaintiff’s claim” and
“(2) undisputed.”

Id. at 1134.

“Undisputed” in this context

“means that the authenticity of the document is not challenged.”
Id.

Skypoint argues that Zaroui’s passport is central to the

Stored Communications Act claim, and the authenticity of the email
attached to Dreni’s declaration with the passport image “cannot in
good faith be disputed under Horsley.”

- 8 -

(Doc. #136, p. 11 n.1.)

Despite Skypoint’s argument to the contrary, defendants do in
fact

dispute

the

truthfulness

declaration and its attachments.

and

authenticity

(Doc. #137, p. 7.)

of

Dreni’s

For example,

Zaroui states via declaration that he supplied a copy of his
passport to Valushi on February 7, 2019, but the supposed email
from Valushi to Dreni containing the passport image is dated two
days earlier, on February 5th.

(Doc. #137-1, p. 15.)

The

defendants also question why Valushi would be communicating with
Dreni in the first place, and suggest Valushi’s email address is
the kind of information Dreni would have obtained by accessing
Zaroui’s email
declaration

and

account. 2
its

(Doc.

attachments

#137, p. 7.)
are

being

Since Dreni’s

challenged

by

the

defendants, Horsley does not apply, and the Court will not consider
them at the motion to dismiss stage.
rejects

this

portion

of

Skypoint’s

Accordingly, the Court

argument

that

the

Stored

Communications Act claim should be dismissed for failure to state
a claim.
(2)

Count Three: Tortious Interference with a Contract

The third counterclaim alleges Skypoint and Dreni tortuously
interfered with a contract between 3 Amigos and non-party Mental
Media.

(Doc. #122, p. 29.)

The claim alleges that pursuant to a

2

In his declaration, Zaroui states that Valushi was a
business associate unrelated to 3 Amigos or the film. (Doc. #1371, p. 15.) He also states that he believes Dreni contacted Valushi
only after accessing Zaroui’s email account. (Id.)

- 9 -

“Film Financing Agreement,” 3 Amigos intended to complete postproduction of the film by May 2018 at the latest.
25.)

(Doc. #122, p.

According to the claim, in an effort to meet the May 2018

deadline 3 Amigos contracted with Mental Media to have a final
version of the film by the end of February 2018.

(Id.)

William

Kaufman is alleged to have been the contact person between Mental
Media and 3 Amigos, supervising all the services provided under
the Mental Media-3 Amigos contract.

(Id.)

In or around February

2018, Dreni is alleged to have convinced Kaufman that Dreni had
secured funding for another Kaufman film, causing Kaufman to cease
working on the 3 Amigos film for a period of time in or around
March 2018 and travel to Bulgaria.

(Id. pp. 25-26.)

Dreni’s

statements, which defendants allege were false, resulted in the
post-production not being completed by Kaufman until July 2018,
and ultimately resulted in a delayed release of the film.

(Id.

pp. 25-26, 29.)
As

an

initial

matter,

Skypoint

argues

the

tortious

interference claim should be dismissed as to Zaroui, Crawford, and
BlackburnSteele because they were not parties to the contract with
Mental Media.

(Doc. #136, pp. 14-15.)

The defendants fail to

address this argument in their Opposition.
Under Florida law a claim for tortious interference with a
contract

requires

a

contract

“that

rights.”

Davies v. Afilias Ltd., 293 F. Supp. 2d 1265, 1269 (M.D.

- 10 -

affords

plaintiff

legal

Fla. 2003) (citations omitted).

The defendants state that the

contract at issue was between 3 Amigos and Mental Media (Doc. #122,
p. 25, 29), and there is no allegation that the other defendants
had any legal rights under the contract.

There is nothing in the

Counterclaim which asserts any basis for these three to have
standing to state a tortious interference claim.

Accordingly, the

Court will grant Skypoint’s motion to the extent the tortious
interference

claim

brought

by

Zaroui,

Crawford,

and/or

BlackburnSteele is dismissed without prejudice.
Skypoint

next

argues

the

third

counterclaim

dismissed for failing to state a cause of action.
14.)

In

Florida,

the

elements

for

a

should

be

(Doc. #136, p.

claim

for

tortious

interference with a contract are (1) a contract that affords
plaintiff legal rights, (2) defendant’s knowledge of the contract,
(3) defendant’s intentional, unjustified procurement of a breach
of the contract, and (4) damages to plaintiff resulting from the
breach.

Davies, 293 F. Supp. 2d at 1269.

Skypoint asserts that

the defendants fail to allege (1) a breach of the contract and (2)
who committed the breach.

(Doc. #136, p. 15.)

The defendants

respond that there are sufficient factual allegations to allow the
Court to infer Mental Media breached the contract.
pp. 8-9.)

(Doc. #137,

The Court agrees with the defendants.

Reading the allegations in the light most favorable to the
non-moving

parties,

the

counterclaim

- 11 -

defendants

allege

(1)

3

Amigos contracted with Mental Media to complete the film by the
end of February 2018, (2) Kaufman was the contact person for the
contract

and

supervised

all

the

services

provided

under

the

contract, (3) Dreni convinced Kaufman to cease working on the film
in or around February 2018, and (4) Kaufman did not deliver the
film

until

July

2018.

While

Skypoint

is

correct

that

the

defendants fail to specifically allege Mental Media breached the
contract, the Court finds the above allegations sufficient to infer
such a breach.

See Intellicig USA LLC v. CN Creative Ltd., 2016

WL 5402242, *3 (N.D. Ga. July 13, 2016) (noting that “in a hypertechnical sense,” the complaint failed to allege the specific
contractual provisions that had been breached, but nonetheless
finding that “when the allegations are construed in conjunction
with the written terms of the [contract], the pleadings in this
case are sufficient to suggest that Creative is in breach of the
parties’ written contract”).
Alternatively, Skypoint argues that even if the Court infers
an allegation of breach of contract by Mental Media, the claim
should

be

dismissed

because

it

is

factually

refuted

declaration provided by Kaufman.

(Doc. #136, pp. 15-18.)

declaration,

to

which

is

attached

Skypoint’s

motion,

by

a

In the
Kaufman

states that he was the director for the film and not the contact
person between 3 Amigos and Mental Media.

(Doc. #136, p. 32.)

Kaufman further states that (1) he was not an agent for, or

- 12 -

employed

by,

3

Amigos

or

Mental

Media

on

the

film’s

post-

production, (2) a different individual was the contact person
between 3 Amigos and Mental Media, (3) his contractual obligations
ended in September 2017, and (4) his trip to Bulgaria had no
bearing on the delivery of the film and had no effect on its
release.

(Id. pp. 32-33.)

Skypoint argues that because Kaufman

was not a party to or had any obligations under the Mental Media3 Amigos contract, any allegation of conduct by Dreni and Skypoint
with regards to Kaufman cannot form the basis of the tortious
interference claim.

(Id. p. 17.)

In response, the defendants assert Skypoint’s argument fails
because (1) the Court should not consider Kaufman’s declaration,
(2) the contents of the declaration “are only, at best, partially
true,” and (3) Kaufman’s formal status in Mental Media or 3 Amigos
does not affect the claim as a matter of law.
10.)

(Doc. #137, pp. 9-

The Court finds it unnecessary to address each of these

arguments because it is clear that the contents of Kaufman’s
declaration are not “undisputed” as that term is used in Horsley. 3
As Kaufman’s declaration is challenged by the defendants, the Court
will not consider it for purposes of Skypoint’s motion to dismiss.

3

The defendants have provided a declaration by Crawford that
contradicts some of Kaufman’s statements. (Doc. #137-2, pp. 1823.) For example, Crawford states Kaufman was not only involved
in the film’s post-production, but was “central” to it. (Id. pp.
18-21.)

- 13 -

To the extent Skypoint suggests the Court should grant summary
judgment

on

the

tortious

interference

claim

based

on

the

declaration, the Court finds there is a genuine dispute of material
fact precluding such an outcome.

See Fed. R. Civ. P. 56(a).

This

portion of the motion to dismiss is denied.
B. Subject Matter Jurisdiction
Skypoint

argues

the

defamation

and

tortious

interference

claims should be dismissed for lack of subject matter jurisdiction.
(Id. p. 5.)

Anticipating defendants arguments, Skypoint asserts

the Court does not have supplemental jurisdiction over either claim
because (1) the Stored Communications Act claim should be dismissed
for failure to state a claim, and (2) the two claims do not arise
from a common nucleus of facts as Skypoint’s Section 10(b) claim
in the Third Amended Complaint.

(Doc. #136, pp. 7-9.)

Defendants assert the Court has jurisdiction over the Stored
Communications

Act

claim

pursuant

to

28

U.S.C.

§

1331,

and

supplemental jurisdiction over the remaining two claims pursuant
to 28 U.S.C. § 1367.

(Doc. #122, p. 15.)

Alternatively, the

defendants assert the Court has jurisdiction over the two state
law claims because they arise out of the same transactions and
events that give rise to Skypoint’s claims in the Third Amended
Complaint.

(Id.) Having reviewed the allegations and arguments,

the Court finds it has jurisdiction over all three of the claims.

- 14 -

As stated above, the Court finds the defendants sufficiently
state a cause of action under the Stored Communications Act, and
therefore the Court has jurisdiction over that claim pursuant to
28 U.S.C. § 1331.

Section 1367 of Title 28 provides that subject

to inapplicable exceptions, “in any civil action of which the
district courts have original jurisdiction, the district courts
shall have supplemental jurisdiction over all other claims that
are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy.”
28 U.S.C. § 1367(a).

The “case or controversy” standard confers

supplemental jurisdiction over all state claims “which arise out
of a common nucleus of operative fact” with a substantial federal
claim.

Parker v. Scrap Metal Processors, Inc., 468 F.3d 733, 743

(11th Cir. 2006) (citing United Mine Workers of Am. v. Gibbs, 383
U.S. 715, 725 (1966)).

Therefore, the issue is whether the

defamation and tortious interference claims arise out of a common
nucleus of operative fact as the Stored Communications Act claim. 4

4

Because Skypoint argues the Stored Communication Act claim
should be dismissed for failure to state a claim, it does not
address whether the three counterclaims arise from a common nucleus
of operative fact. The Court will nonetheless examine this issue
because “a district court’s first duty is to determine whether it
enjoys subject-matter jurisdiction, because that implicates the
court’s very power to hear the case.”
Scelta v. Delicatessen
Support Servs., Inc., 57 F. Supp. 2d 1327, 1343 (M.D. Fla. 1999)
(marks and citation omitted).

- 15 -

The Court finds all three of the counterclaims arise out of
the

circumstances

surrounding

the

production

of

the

film.

According to the Third Amended Complaint, Skypoint (via its member
Dreni) entered into an agreement with 3 Amigos to partially finance
the film and then subsequently demanded a return of its investment.
Defendants assert that when the investment was not returned, Dreni
began trying to disrupt the film’s production and release.
#122, pp. 21-22.)

(Doc.

As part of this campaign, Dreni is alleged to

have (1) accessed Zaroui’s email account and obtained business
contacts and documents, (2) sent messages to various individuals
disparaging the defendants, and (3) interfered with a 3 Amigos
contract to disrupt post-production and delay the film’s release.
(Id. pp. 26-29.)

As the three counterclaims arise out of a common

nucleus of operative fact, the Court finds it has supplemental
jurisdiction over the defamation and tortious interference claims
pursuant to 28 U.S.C. § 1367(a).

Therefore, the Court denies

Skypoint’s motion to the extent it seeks dismissal of those claims
for lack of subject-matter jurisdiction.
Accordingly, it is hereby
ORDERED:
Plaintiff’s Motion to Dismiss Counterclaims (Doc. #136) is
GRANTED in part and DENIED in part.
1. Count

Two

prejudice

of
as

the
to

Counterclaims

defendants

- 16 -

3

is

dismissed

Amigos,

without

Crawford,

and

BlackburnSteele, and Count Three of the Counterclaims is
dismissed

without

Crawford,

and

prejudice

as

BlackburnSteele.

to

defendants

Defendants

Zaroui,

shall

have

FOURTEEN (14) DAYS from the date of this Opinion and Order
to file amended counterclaims.
2. The Motion to Dismiss is otherwise denied.
DONE and ORDERED at Fort Myers, Florida, this
January, 2020.

Copies:
Counsel of Record

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7th

day of