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

Filing 180

ORDER denying 168 Dispositive Joinder of Motion to Dismiss Counterclaims and Motion to Dismiss Third Party Complaint. Signed by Judge John E. Steele on 5/11/2020. (FWH)

Case 2:18-cv-00356-JES-MRM Document 180 Filed 05/11/20 Page 1 of 17 PageID 1659

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 third-party defendant
Denis

Dreni’s

Dispositive

Joinder

of

Motion

to

Dismiss

Counterclaims and Motion to Dismiss Third Party Complaint (Doc.
#168) filed on March 13, 2020.

The third-party plaintiffs filed

an Opposition (Doc. #169) on March 19, 2020.

At the Court’s

direction, Dreni filed a Reply (Doc. #172) on April 16, 2020, and

Case 2:18-cv-00356-JES-MRM Document 180 Filed 05/11/20 Page 2 of 17 PageID 1660

an Amended Reply (Doc. #173) on April 17, 2020. 1

For the reasons

set forth below, the motion is denied.
I.
Skypoint Advisors, LLC is a Florida limited liability company
whose members include third-party defendant Denis Dreni.
#93, p. 1.)

(Doc.

Skypoint’s Third Amended Complaint (Doc. #93) against

third-party plaintiffs 3 Amigos Productions, LLC, BlackburnSteele,
LLC,

Issa

Zaroui,

and

Mark

Crawford

alleges

the

third-party

plaintiffs made misrepresentations to induce Skypoint to invest in
a film project.

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

The Third Amended Complaint

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

August

Counterclaims

2019,
(Doc.

the
#122)

third-party
against

(Id. pp. 32-47.)

plaintiffs

Skypoint

and

filed

their

Dreni.

The

Counterclaims asserted claims of (1) defamation, (2) violation of
the Stored Communications Act (“SCA”), 18 U.S.C. § 2707, and (3)
tortious interference with a contract.

(Id. pp. 26-29.)

Each

claim was alleged on behalf of all four third-party plaintiffs,
and asserted against Skypoint and Dreni, jointly and severally.
(Id.)
In October 2019, Skypoint filed a motion seeking to dismiss
the three counterclaims for failure to state a claim and/or lack

1

Dreni’s Reply was amended
exhibit. (Doc. #173, p. 1.)

- 2 -

only

to

include

an

omitted

Case 2:18-cv-00356-JES-MRM Document 180 Filed 05/11/20 Page 3 of 17 PageID 1661

of subject matter jurisdiction.

(Doc. #136.)

The motion was

granted in part, with the SCA claim dismissed without prejudice as
to 3 Amigos, Crawford, and BlackburnSteele, and the tortious
interference

claim

dismissed

without

Crawford, and BlackburnSteele.

prejudice

as

to

Zaroui,

(Doc. #151.)

On January 21, 2020, the third-party plaintiffs filed their
First Amended Answer, Affirmative Defenses and Counterclaim (Doc.
#152), asserting the same three counterclaims: (1) defamation, (2)
violation

of

contract.

(Id. pp. 32-35.)

against

the

Skypoint

SCA,

and

and

(3)

tortious

interference

with

a

All three claims were again alleged

Dreni,

jointly

and

severally.

(Id.)

However, while the defamation claim was again asserted on behalf
of all the third-party plaintiffs, the SCA claim was asserted only
on behalf of Zaroui and 3 Amigos, and the tortious interference
claim was asserted only on behalf of 3 Amigos.

(Id.)

On March 13, 2020, Dreni filed the motion currently before
the Court, arguing all three counterclaims should be dismissed for
failure

to

jurisdiction.

state

a

claim

and/or

(Doc. #168, p. 3.)

lack

of

subject

matter

On March 19, 2020, the third-

party plaintiffs filed an Opposition, noting that the motion’s
arguments were identical to those raised by Skypoint in its prior
motion to dismiss and ruled upon by the Court.

(Doc. #169, p. 1.)

The third-party plaintiffs suggested the current motion merely
“cut and paste” the arguments from Skypoint’s previous motion,

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characterizing the current motion as “frivolous and vexatious.”
(Id.)
The Court ordered Dreni to file a reply addressing the thirdparty plaintiffs’ allegations, as well as addressing why sanctions
should not be imposed if the Court ultimately agreed the current
motion was frivolous.

(Doc. #171, p. 2.)

On April 17, 2020,

Dreni filed his Amended Reply, arguing the “frivolous and vexatious
accusations

are

unsubstantiated.”

simply

empty,

baseless

(Doc. #173, p. 3.)

and,

[sic]

Dreni acknowledged that

some of the arguments in the current motion “may be identical” to
those raised in Skypoint’s prior motion, but argued his intent in
re-raising those arguments was to preserve the issues for himself
on appeal, if necessary.

(Id.)

He also noted that the current

motion raises arguments not addressed in Skypoint’s motion and
which relate solely to himself.

(Id. pp. 3-4.)

The motion is now ripe for review.

The Court will first

address the arguments raised in the motion, and then proceed to
the issue of sanctions.
II.
A. Subject Matter Jurisdiction
Dreni first argues the defamation and tortious interference
counterclaims should be dismissed for lack of subject matter
jurisdiction.

(Doc. #168, p. 6.)

Dreni argues the Court does not

have supplemental jurisdiction over either of these claims because

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(1) the federal SCA counterclaim should be dismissed for failure
to state a cause of action, and (2) the defamation and tortious
interference counterclaims do not arise from the same case of
controversy as Skypoint’s federal Section 10(b) claim.

(Id. p.

8.)
These same jurisdictional arguments were previously raised in
Skypoint’s motion to dismiss.
considered

the

arguments

(Doc. #136, pp. 5-9.)

but

ultimately

determined

The Court
it

had

jurisdiction over the SCA counterclaim pursuant to 28 U.S.C. §
1331,

and

supplemental

jurisdiction

tortious

interference

counterclaims

1367(a).

(Doc. #151, pp. 14-16.)

over

the

pursuant

defamation
to

28

and

U.S.C.

§

Specifically, the Court found

all three counterclaims arose out of a common nucleus of operative
fact, i.e., the circumstances surrounding the production of the
film.

(Id. p. 16.)

The Court re-adopts this reasoning and

conclusion. 2
B. Failure to State a Cause of Action
Dreni next argues each of the three counterclaims should be
dismissed for failing to state a cause of action.
9-22.)

(Doc. #168, pp.

Under Federal Rule of Civil Procedure 8(a)(2), a Complaint

2

While the Court’s previous analysis addressed allegations
raised in the third-party plaintiffs’ original counterclaims, the
allegations in the amended counterclaims are nearly identical.
Compare Doc. #122, pp. 14-29 and Doc. #152, pp. 16-35.
Accordingly, the Court finds its previous jurisdictional analysis
and conclusion is still applicable.

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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 555l; 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 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 omitted).
“Threadbare

recitals

of

the

elements

of

a

cause

of

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

a

Iqbal,

“Factual allegations that are merely consistent

defendant’s

plausible.”

action,

liability

fall

short

of

being

facially

Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th

Cir. 2012) (citations omitted).

On the other hand, “[a] claim has

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Case 2:18-cv-00356-JES-MRM Document 180 Filed 05/11/20 Page 7 of 17 PageID 1665

facial plausibility when the plaintiff pleads factual content that
allows

the

court

to

draw

the

reasonable

inference

defendant is liable for the misconduct alleged.”
at 678.

that

the

Iqbal, 556 U.S.

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.”
(1)

Id. at 679.

Stored Communications Act Counterclaim

In the SCA counterclaim, Zaroui and 3 Amigos allege Dreni, or
someone acting on his behalf, accessed Zaroui’s email account
without authorization.

(Doc. #152, p. 34.)

The allegations in

this counterclaim are identical to those alleged in the original
counterclaims. 3
33-34.

Compare Doc. #122, pp. 28-29 and Doc. #152, pp.

In his motion, Dreni argues the counterclaim should be

dismissed because (1) it fails to sufficiently allege Skypoint and
Dreni

intentionally

authorization,

and

accessed
(2)

attached to the motion.
arguments,

as

well

as

it

Zaroui’s

is

refuted

email
by

account

Dreni’s

(Doc. #168, pp. 14-17.)
Dreni’s

declaration,

were

declaration
These same
previously

submitted by Skypoint as part of its motion to dismiss.
#136, pp. 10-13, 20-21.)

without

(Doc.

The Court considered and rejected the

3

As previously noted, the original version of this
counterclaim was alleged on behalf of all the third-party
plaintiffs, while the amended version is alleged on behalf of only
3 Amigos and Zaroui.

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arguments, finding (1) the SCA counterclaim sufficiently pled
allegations of intentional access, and (2) the Court would not
consider Dreni’s declaration at the motion to dismiss stage because
the third-party plaintiffs disputed the declaration’s truthfulness
and authenticity.

(Doc. #151, pp. 6-9.)

The Court re-adopts this

analysis and conclusion.
(2)

Tortious Interference with a Contract Counterclaim

In the tortious interference counterclaim, 3 Amigos alleges
Skypoint

and

Dreni

intentionally

interfered

between 3 Amigos and non-party Mental Media.

with

a

contract

(Doc. #152, p. 35.)

In Florida, the elements for a 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

v. Afilias Ltd., 293 F. Supp. 2d 1265, 1269 (M.D. Fla. 2003)
(citations omitted).
In his motion, Dreni first argues Zaroui, Crawford, and
BlackburnSteele should be dismissed from this claim because they
are not parties to the contract.

(Doc. #168, p. 19.)

Dreni next

argues the counterclaim should also be dismissed as to 3 Amigos
because the claim fails to allege a breach of contract and who
committed the breach.

(Id.)

Finally, Dreni argues that to the

extent a breach may be inferred by the Court, the claim is refuted

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by non-party William Kaufman’s attached declaration.

(Id. pp. 19-

22, 35-37.)
Regarding

the

first

argument,

the

tortious

interference

counterclaim is alleged on behalf of 3 Amigos only (Doc. #152, p.
35), and therefore Dreni’s argument relating to Zaroui, Crawford,
and BlackburnSteele’s legal standing is irrelevant.

As to Dreni’s

second argument, the counterclaim clearly alleges Mental Media
breached the contract.

(Id.)

Finally, regarding Dreni’s argument

that the claim is refuted by Kaufman’s declaration, Skypoint
previously raised that argument in its motion to dismiss and the
Court denied it. 4

(Doc. #136, pp. 15-17; Doc. #151, pp. 12-14.)

The Court re-adopts its analysis and conclusion on that issue, and
denies

Dreni’s

request

to

dismiss

the

tortious

interference

counterclaim.
(3)

Defamation Counterclaim

In the defamation counterclaim, the third-party plaintiffs
allege Skypoint and Dreni sent electronic messages to various nonparties containing false and defamatory content.

(Doc. #152, p.

32.)

4

In fact, all of Dreni’s arguments relating to the tortious
interference counterclaim were previously raised by Skypoint and
addressed by this Court. (Doc. #136, pp. 14-17; Doc. #151, pp.
10-14.) However, because the tortious interference counterclaim
has since been amended, Dreni’s arguments have been rendered
factually impossible, an issue that will be addressed further in
the sanctions section.

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Defamation under Florida law has these five elements:
(1) publication; (2) falsity; (3) the statement was made
with knowledge or reckless disregard as to the falsity
on a matter concerning a public official, or at least
negligently on a matter concerning a private person; (4)
actual damages; and (5) the statement must be
defamatory.
Turner v. Wells, 879 F.3d 1254, 1262 (11th Cir. 2018) (citing Jews
For Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008)).

In

his motion, Dreni argues this counterclaim should be dismissed
because

it

(1)

fails

to

allege

the

elements

of

publication,

falsity, and damages, and (2) fails to allege any required elements
to pierce Skypoint’s corporate veil.

(Doc. #168, pp. 10, 11.)

Unlike the arguments previously addressed, these issues were not
raised in Skypoint’s prior motion.
The Court disagrees with Dreni’s first assertion that the
counterclaim fails to allege the elements of publication, falsity,
and damages.

The defamation counterclaim contains the following

allegations:
67. On February 20, 2018, Dreni described Zaroui as a
“con artist” and forwarded the message to non-parties.
68. On March 1, 2018, Skypoint and Dreni sent text
messages to Koloreto Cukalli in which they made false
and defamatory statements regarding the Counterclaim
Plaintiffs, describing them as deceitful and as being
engaged in fraudulent and illegal behavior.
69. On May 15, 2018Skypoint [sic] and Dreni sent text
messages to Koloreto Cukalli in which they made false
and defamatory statements regarding the Counterclaim
Plaintiffs.

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70. Skypoint and Dreni sent similar text messages to
another third party, Musha Pnishi, towards the end of
2018.
71. Upon information and belief, Skypoint and Dreni sent
additional messages to additional non-parties containing
similar false and defamatory content, describing the
Counterclaim Plaintiffs as deceitful and as being
engaged in fraudulent and illegal behavior, all to be
proven during the course of this proceeding.
72. The statements contained in these text messages and
other electronic means constitute libel per se because
they are false accusations of dishonesty, lack of
integrity and untrustworthiness which directly impugns
Counterclaim Plaintiffs’ professional and personal
reputation.
73. The statements contained in these text messages are
false because the Counterclaim Plaintiffs never lied or
were deceitful in their dealings with Skypoint and
Dreni.
74. At the time of making the statements, Skypoint and
Dreni knew the statements were false or had serious
doubts as to their truth.
75. Skypoint and Dreni’s primary purpose in making the
statement was to indulge ill will, hostility, and an
intent to harm the Counterclaim Plaintiffs.
76. As a direct and proximate result of the publication
of these defamatory statements in the text messages,
Counterclaim Plaintiffs have suffered economic losses
and damage to reputation. As a result of these defamatory
statements, Counterclaim Plaintiffs were embarrassed and
humiliated
before
various
business
and
personal
connections and were forced to explain away the false
statements and clear their name. Counterclaim Plaintiffs
also suffered disruptions in their personal lives and
business ventures, both in connection with “The Brave”
and in connection with other projects they were working
on at that time.
(Doc. #152, pp. 32-33.)

Viewing these allegations in the light

most favorable to the third-party plaintiffs, the Court finds the

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defamation

counterclaim

sufficiently

alleges

the

publication,

falsity, and damages elements.
Dreni also argues that the defamation counterclaim should be
dismissed because the third-party plaintiffs have failed to allege
any of the necessary elements to pierce the corporate veil.
#168,

p.

11.)

Dreni

suggests

that

because

the

(Doc.

third-party

plaintiffs have not sought to pierce the corporate veil, he cannot
be personally liable.

(Id. p. 10.)

Prior to addressing this

argument, however, the Court must first address an issue raised in
Dreni’s Amended Reply.
In

the

amended

counterclaims,

the

third-party

plaintiffs

allege Skypoint is a Florida limited liability company and Dreni
is its managing member.

(Doc. #152, p. 17.)

In his Amended

Reply, Dreni claims he is “not now nor has he ever been the named
or legal Managing Member” of Skypoint.

(Doc. #173, p. 4.)

In

support, Dreni cites to an attached exhibit, reportedly obtained
from the Florida Department of State, Division of Corporations,
which lists
Skypoint.

“SKYPOINT

MANAGING

TRUST”

as

the

“Title

MGR”

of

(Id. pp. 4, 13.)

However, “on a motion to dismiss this Court’s review is
limited to the four corners of the complaint.”
2012 WL 1190974, *2 (M.D. Fla. Mar. 1, 2012).
consider

a

document

attached

to

a

motion

Wiand v. Mason,
While a court may

to

dismiss

without

converting the motion into one for summary judgment under certain

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conditions, see Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir.
2002), Dreni does not argue those conditions are applicable.
Furthermore, Dreni did not attach the exhibit to his motion, but
is instead raising this issue for the first time in his reply
brief.
Fla.

See Allah El v. Avesta Homes, 2012 WL 515912, *3 (M.D.

Feb.

16,

2012)

(“District

Courts,

including

this

one,

ordinarily do not consider arguments raised for the first time on
reply.” (citation omitted)).

Accordingly, the Court will not

consider the exhibit or Dreni’s assertion at this time. 5
Turning back to Dreni’s argument regarding the failure to
allege any of the necessary elements to pierce the corporate veil,
the Court finds this argument fails because the counterclaims
allege Dreni engaged in tortious behavior towards the third-party
plaintiffs.

Under

Florida

law,

“officers

or

agents

of

corporations may be individually liable in tort if they commit or
participate in a tort, even if their acts are within the course

5

As Dreni has failed to meet the requirements of Horsley to
allow the Court to consider the exhibit as part of the motion to
dismiss, the Court could only consider it as part of a motion for
summary judgment.
See Christy v. Sheriff of Palm Beach Cty.,
Fla., 288 Fed. App’x 658, 664 (11th Cir. 2008) (“[O]nce the court
decides to accept matters outside the pleading, it must convert
the motion to dismiss into one for summary judgment.” (citation
omitted)).
However, even if the Court did so, the exhibit
conflicts with other evidence in the record, such as the film
financing
agreement
attached
to
Skypoint’s
Third
Amended
Complaint. (Doc. #93-1, pp. 52-58.) That agreement was between
3 Amigos and Skypoint, and signed by Dreni on behalf of Skypoint.
(Id.) In the agreement, Dreni is listed as the “Managing Member”
of Skypoint. (Id. p. 58.)

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and scope of their employment.”

White v. Wal-Mart Stores, Inc.,

918 So. 2d 357, 358 (Fla. 1st DCA 2005) (citations omitted).
same rule applies to limited liability companies.

The

Cannon v.

Fournier, 57 So. 3d 875, 881 (Fla. 2d DCA 2011); see also Candyman
Kitchens Inc. v. Sandcrafters LLC, 2018 WL 6434058, *1 (M.D. Fla.
Dec. 7, 2018) (“Under Florida law, a member or manager of a limited
liability company is personally liable for torts committed within
the scope of the employment.”).

“Liability will attach ‘even if

no

the

argument

is

disregarded.’”

advanced

that

corporate

form

should

be

Bradenton Motorsports Park, Inc. v. Long, 2011 WL

13244036, *1 (M.D. Fla. June 21, 2011) (quoting Fla. Speciality,
Inc. v. H 2 Ology, Inc., 742 So. 2d 523, 528 (Fla. 1st DCA 1999)).
Here, the third-party plaintiffs allege Dreni engaged in
tortious acts, and viewing the allegations in the light most
favorable to them, that the acts were on behalf of Skypoint and
related to the film-production dispute.

Accordingly, the Court

finds the claims against Dreni are based on tortious acts allegedly
committed by him, and therefore the third-party plaintiffs were
not required to allege facts to pierce the corporate veil.

See

Long, 2011 WL 13244036, *1 (rejecting argument that claims against
corporate officer should be dismissed because the defendant had
not pled sufficient facts to pierce the corporate veil when “a
plain

reading

shows

that

Defendants’

committed by [the officer]”).

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claim

is

based

on

acts

Case 2:18-cv-00356-JES-MRM Document 180 Filed 05/11/20 Page 15 of 17 PageID 1673

For the reasons discussed above, the Court denies Dreni’s
motion to dismiss the three counterclaims.

The Court will now

turn to the issue of sanctions.
III.
In ordering Dreni to file a reply, the Court directed him to
address why sanctions should not be imposed pursuant to Rule 11 of
the Federal Rules of Civil Procedure if the Court agreed with the
third-party plaintiffs that the motion was frivolous because it
contained arguments previously addressed by the Court.
#171, p. 2.)

(Doc.

“The purpose of Rule 11 is to deter baseless filings

in district court and thus streamline the administration and
procedure of federal courts.”

Peer v. Lewis, 606 F.3d 1306, 1311

(11th Cir. 2010) (citation omitted).

A district court has the

discretion to award Rule 11 sanctions:
(1) when a party files a pleading that has no reasonable
factual basis; (2) when the party files a pleading that
is based on a legal theory that has no reasonable chance
of success and that cannot be advanced as a reasonable
argument to change existing law; or (3) when the party
files a pleading in bad faith for an improper purpose.
Anderson v. Smithfield Foods, Inc., 353 F.3d 912, 915 (11th Cir.
2003) (citation omitted).
In his Amended Reply, Dreni acknowledges that his motion is
“similar in text” and the “[t]he arguments may be identical” to
Skypoint’s prior motion to dismiss.
However,

Dreni

argues

he

was

(Doc. #173, pp. 3, 4.)

re-raising

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these

arguments

for

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preservation purposes, and that “he was simply trying to raise
issues that his counsel believed may apply to the Third-Party
Complaint against him even though they were found not to apply” to
Skypoint.

(Id. pp. 3, 9.)

Finally, Dreni suggests that if the

Court is inclined to impose sanctions, an admonishment is more
appropriate than monetary punishment.

(Id. p. 11.)

Having considered the matter, the Court has determined it
will not impose formal sanctions on Dreni or his attorney.

The

Court is persuaded that the motion’s repetition of arguments
previously raised by Skypoint, and addressed and ruled upon by the
Court, was for the legitimate purpose of preserving issues for
appeal.

The

Court

observes

that

greater

care

needed

to

be

exercised to ensure that certain of the arguments were factually
supported.

The

Court

trusts

that

such

an

observation

is

sufficient.
Accordingly, it is now
ORDERED:
Third-party defendant Denis Dreni’s Dispositive Joinder of
Motion to Dismiss Counterclaims and Motion to Dismiss Third Party
Complaint (Doc. #168) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
of May, 2020.

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11th

day

Case 2:18-cv-00356-JES-MRM Document 180 Filed 05/11/20 Page 17 of 17 PageID 1675

Copies:
Parties of record

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