Skypoint Advisors, LLC. v. 3 Amigos Productions LLC. et al
Filing
269
ORDER denying 239 Motion for Summary Judgment; denying 241 Motion for Summary Judgment. Signed by Judge John E. Steele on 12/27/2021. (AFC)
Case 2:18-cv-00356-JES-MRM Document 269 Filed 12/27/21 Page 1 of 13 PageID 3262
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SKYPOINT ADVISORS, LLC.,
Plaintiff/Counter
Defendant,
v.
Case No:
2:18-cv-356-JES-MRM
3 AMIGOS PRODUCTIONS LLC.,
BLACKBURNSTEELE LLC., ISSA
ZAROUI, and MARK CRAWFORD,
Defendants/
Counterclaimants.
3 AMIGOS PRODUCTIONS LLC.,
BLACKBURNSTEELE LLC., ISSA
ZAROUI, and MARK C CRAWFORD,
Third-Party
Plaintiffs,
v.
DENIS DRENI,
Third-Party
Defendant.
OPINION AND ORDER
This action comes before the Court on review of the following
motions: (1) Counter-Defendant Skypoint Advisor LLC’s (Skypoint)
Partial
Motion
for
Summary
Judgment
(Doc.
#239)
as
to
the
Counterclaim; and (2) Third-Party Defendant Denis Dreni’s (Dreni)
Motion for Summary Judgment (Doc. #241) as to the claims made in
the
Third-Party
Complaint.
Counterclaimants/Third-Party
Case 2:18-cv-00356-JES-MRM Document 269 Filed 12/27/21 Page 2 of 13 PageID 3263
Plaintiffs 3 Amigos Production LLC (3 Amigos), BlackburnSteele LLC
(BlackburnSteele),
(Crawford)
combined
Issa
Zaroui
(collectively,
Response
in
(Zaroui),
Counterclaim
Opposition
to
Skypoint and Dreni filed Replies.
the
and
Mark
Plaintiffs)
motions
Crawford
filed
(Doc.
(Docs. ## 260, 261.)
a
#251).
For the
reasons set forth, both motions are denied.
I.
This
case
stems
from
a
dispute
over
monies
provided
by
Skypoint to 3 Amigos for the production and release of a movie.
Dreni is the managing member of Skypoint; BlackburnSteele, Zaroui,
and non-party Chad Pittman are the members of 3 Amigos; and
Crawford is the sole member of BlackburnSteele.
The operative Complaint (Doc. #93) asserts the following
claims: (1) violation of § 10(b) of the Securities Exchange Act of
1934
and
corresponding
Rule
10b-5
against
all
Counterclaim
Plaintiffs; (2) violation of Florida securities law against all
Counterclaim
Plaintiffs;
(3)
fraud
against
all
Counterclaim
Plaintiffs; (4) violation of the Florida Deceptive and Unfair Trade
Practices Act against all Counterclaim Plaintiffs; (5) breach of
contract against 3 Amigos only; and (6) breach of fiduciary duty
against 3 Amigos only. In response, Counterclaim Plaintiffs assert
a Counterclaim against Skypoint for: (1) defamation, brought by
all
Counterclaim
Communications
Plaintiffs;
Act,
brought
(2)
by
3
2
violation
Amigos
and
of
the
Zaroui;
Stored
and
(3)
Case 2:18-cv-00356-JES-MRM Document 269 Filed 12/27/21 Page 3 of 13 PageID 3264
tortious interference with contract, brought by 3 Amigos only.
(Doc. #152.)
Counterclaim Plaintiffs assert the same three claims
against Dreni in a Third-Party Complaint.
(Id.)
The following basic facts appear to be undisputed: On or about
February 2017, Skypoint and 3 Amigos entered into a Film Financing
Agreement (the “Agreement”).
(Doc. #93-1.)
The Agreement was
related to 3 Amigos’ production, ownership, and exploitation of a
movie based on a script known as “Lazarat Burning” (the Movie).
Pursuant to the Agreement, Skypoint would provide $50,000
(Id.)
to 3 Amigos.
(Id. § 2.)
The Agreement stated that, “instead of
receiving interest on the monies loaned [Skypoint] has elected to
receive a proportional profit distribution of three point seven
percent (3.7%) share of the 60% investment share of the profit as
describe in Section 3.c.”
(Id. § 2.1.)
Agreement
as
were
to
occur
follows:
Distributions under the
(1)
repaying
front-end
deferrals of the costs of the project, after any loans (including
Skypoint’s loan); (2) repaying any investor principals, on a prorata basis; and (3) distributing the remaining amounts, 60% to any
investors and Skypoint based on their percentage of investment and
40% to 3 Amigos.
(Id. § 3.)
The parties generally agree that a movie went into filming
and production, and that William Kaufman (Kaufman) was hired to
direct
and
produce
the
Movie.
The
parties’
relationship following the Agreement are contested.
3
conduct
and
The Court
Case 2:18-cv-00356-JES-MRM Document 269 Filed 12/27/21 Page 4 of 13 PageID 3265
will discuss the contested background for each claim and the
parties’ positions, as necessary, infra.
II.
Summary
judgment
is
appropriate
only
when
the
Court
is
satisfied that “there is no genuine dispute as to any material
fact and that the movant is entitled to judgment as a matter of
law.”
Fed. R. Civ. P. 56(a).
“An issue of fact is ‘genuine’ if
the record taken as a whole could lead a rational trier of fact to
find for the nonmoving party.”
Baby Buddies, Inc. v. Toys “R” Us,
Inc., 611 F.3d 1308, 1314 (11th Cir. 2010).
A fact is “material”
if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The
moving party bears the initial burden of showing the court, by
reference to materials on file, that there are no genuine issues
of material fact that should be decided at trial.
Hickson Corp.
v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “When
a moving party has discharged its burden, the non-moving party
must then ‘go beyond the pleadings,’ and by its own affidavits, or
by ‘depositions, answers to interrogatories, and admissions on
file,’ designate specific facts showing that there is a genuine
issue for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d
590, 593–94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324).
“A court must decide ‘whether the evidence presents a sufficient
4
Case 2:18-cv-00356-JES-MRM Document 269 Filed 12/27/21 Page 5 of 13 PageID 3266
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.’”
Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th
Cir. 2004) (quoting Anderson, 477 U.S. at 251).
In ruling on a motion for summary judgment, the Court views
all evidence and draws all reasonable inferences in favor of the
non-moving party.
v.
Dantanna’s,
Scott v. Harris, 550 U.S. 372, 380 (2007); Tana
611
F.3d
767,
772
(11th
Cir.
2010).
“‘[I]f
reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.’”
St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198
F.3d 815, 819 (11th Cir. 1999) (quoting Warrior Tombigbee Transp.
Co. v. M/V Nan Fung, 695 F.2d 1294, 1296-97 (11th Cir. 1983)
(finding summary judgment “may be inappropriate even where the
parties agree on the basic facts, but disagree about the factual
inferences that should be drawn from these facts”)).
the
non-movant’s
response
consists
of
nothing
However, if
“more
than
a
repetition of his conclusional allegations,” summary judgment is
not only proper, but required. Morris v. Ross, 663 F.2d 1032, 1034
(11th Cir. 1981).
III.
A.
Defamation Claim
All Counterclaim Plaintiffs assert a defamation claim against
Skypoint
and
Dreni.
(Doc.
#152,
5
p.
32.)
In
this
claim,
Case 2:18-cv-00356-JES-MRM Document 269 Filed 12/27/21 Page 6 of 13 PageID 3267
Counterclaim Plaintiffs contend that Dreni sent messages to nonparties with false and defamatory statements about them, causing
them “disruptions in their personal lives and business ventures.”
(Doc. #152, pp. 32-33.)
this claim.
Only Dreni moves for summary judgment on
(Doc. #241, p. 6.)
Defamation under Florida law requires 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)).
challenges
the
evidentiary
support
for
the
first
and
Dreni
fourth
elements, arguing that Counterclaim Plaintiffs cannot provide any
admissible evidence of publication or damages.
Dreni
states
that
Counterclaim
(Doc. #241, p. 6.)
Plaintiffs
provided
no
relevant discovery related to their defamation claim (id. p. 7),
and that while Zaroui testified during his deposition about losing
work in California because of Dreni’s defamatory statements, he
refused to elaborate further due to a non-disclosure agreement.
(Id. p. 8.)
Contrary to Fed. R. Civ. P. 56(c)(1), Dreni provides
no citation to the record supporting either argument.
8.)
In
their
response,
Counterclaim
6
Plaintiffs
(Id. pp. 7cite
to
two
Case 2:18-cv-00356-JES-MRM Document 269 Filed 12/27/21 Page 7 of 13 PageID 3268
conclusory affidavits 1, as well as emails made by Dreni threatening
to defame them with potential sales companies and investors. (Doc.
#251-1, p. 3; Doc. #251-3, ¶ 3; Doc. #251-4, ¶ 3.) 2
Neither the
motion nor the response shows that any party is entitled to
judgment as a matter of law based on undisputed material facts.
Dreni’s motion on the defamation claim is denied.
B.
Stored Communications Act Claim
Zaroui and 3 Amigos assert a Stored Communications Act (SCA),
18 U.S.C. § 2701, et seq., claim against Skypoint and Dreni.
#152, ¶ 77.)
(Doc.
In this claim, Zaroui and 3 Amigos allege that
Crawford’s affidavit states: “I believe Dreni contacted
third parties, defaming me and interrupting my work including
renewal of my contract as an Independent Board of Director of the
American Bank of Investments and Chairman of its Audit Committee.”)
(Doc. #251-3.)
Zaroui’s affidavit states: “I believe Dreni
contacted third parties, defaming me and interrupting my work in
Albania including on a film studio.” (Doc. #251-4.)
1
Counterclaim Plaintiffs also cite to text message chains
(Doc. #251-2) which are in a foreign language.
Instead of
providing a certified translation, Counterclaim Plaintiffs state
that “translators and live witnesses are capable of being produced
at trial.” (Doc. #251, p. 1. E.g., Doc. #251-1, p. 1; Doc. 2512.) This is insufficient. “‘It is clear, to the point of perfect
transparency, that federal court proceedings must be conducted in
English.’”
Rivas-Montano v. United States, No. 803CR47T24EAJ,
2006 WL 1428507, at *1 (M.D. Fla. May 22, 2006) (quoting United
States v. Rivera-Rosario, 300 F.3d 1, 5, 7 n. 4 (1st Cir. 2002)
(noting “well-settled rule that parties are required to translate
all foreign language documents into English”)). Accordingly, the
Court will not consider any exhibits in a foreign language as part
of the summary judgment record which do not include a translation.
Id. (citing Lopez-Carrasquillo v. Rubianes, 230 F.3d 409, 413-14
(1st Cir. 2000) (declining to consider as part of summary judgment
record a deposition excerpt in Spanish, where party submitting
excerpt failed to provide English translation)).
2
7
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Skypoint/Dreni accessed Zaroui’s email, which is used for 3 Amigos
business purposes, without authorization, causing Zaroui and 3
Amigos damages.
(Id. ¶¶ 81-84.)
3 Amigos and Zaroui allege that
Dreni obtained a copy of Zaroui’s passport and the names and
contact information of business contacts, which evidences the
illegal access.
(Id.)
Both Skypoint and Dreni seek summary
judgment on this claim.
To state a claim under the SCA, an aggrieved party must
establish that the defendant (1) 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) obtained, altered, or prevented
authorized access to a wire or electronic communication while it
was in electronic storage in such system.
Snow v. DirecTV, Inc.,
450 F.3d 1314, 1321 (11th Cir. 2006)); 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).
Both Dreni and Skypoint argue that Zaroui and 3 Amigos have
produced no evidence, other than Zaroui’s own speculation, that
could show that Zaroui’s email was accessed without authorization.
(Doc. #239, pp. 8-18; Doc. #241, pp. 11-17.)
Dreni and Skypoint
cite Dreni’s own declaration, averring that he never accessed
8
Case 2:18-cv-00356-JES-MRM Document 269 Filed 12/27/21 Page 9 of 13 PageID 3270
Zaroui’s email.
(Doc. 238-31.)
Skypoint also cites to a passage
in Zaroui’s deposition, (Doc. #239, p. 18):
Q: Mr. Zaroui, there’s some counterclaims that
were brought against Skypoint in the lawsuit
by yourself and 3 Amigos and Mr. –
A: That will be discussed with the lawyer
after you finish giving her some time to talk
to us.
Q. So but you’ve brought them
Skypoint, okay, and my question –
against
A: And Dreni personally.
Q: All right. What –
A: Skypoint didn’t hack my emails, sir.
Dreni, himself hacked my emails, okay.
Skypoint is not calling producers that I work
with badmouthing me. Dreni is calling them.
Skypoint is not having – doing my life
bad. Dreni is having my life – my professional
life like from bad to worse because it’s like
– I don’t know.
He’s like a big baby.
He goes around
trying to check on Facebook, trying to
investigate where I’m going, who I’m talking
to so he can send – when this – here, I’ll
quote for you the email thread.
He sends from some email address,
mcos@grove28, you know, to everybody I work
with at every given moment badmouthing me, you
know, saying I’m scum, you know, I money
launder, et cetera, et cetera, …
9
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(Doc. 238-28, p. 14.) 3
that
“Skypoint
didn’t
Skypoint contends that Zaroui’s admission
hack
[his]
emails,”
puts
any
alleged
misconduct solely on Dreni, and summary judgment in its favor is
proper.
(Doc. #239, p. 18; Doc. #260, pp. 2-3.)
In their collective response to Skypoint and Dreni’s motions,
3 Amigos and Zaroui cite the following evidence to support the
claim: (1) a November 30, 2018 notice that Zaroui’s email account
had been accessed by an unknown source (Doc. #251-5); (2) a
threatening text message from Dreni to Zaroui with sensitive
information about investors from various locations (Doc. #251-6);
(3) a text message exchange between Dreni and Balsamo, discussing
Zaroui’s alleged email hack (Doc. #251-7); and (4) a February 7,
2018 text from Dreni to Crawford, attaching a copy of Zaroui’s
passport (Doc. #251-8). 4
3 Amigos and Zaroui do not address
Zaroui’s deposition testimony or his statement that “Skypoint
didn’t hack my email.”
Based on the foregoing, Dreni and Skypoint have not carried
their burden of showing the Court that there are no genuine issues
Skypoint only provided select pages from Zaroui’s
deposition, and did not provide the page before or after quoted
sections to provide context.
3
Dreni does not dispute that he sent the text message to
Crawford with Zaroui’s passport. The parties do, however, hotly
contest how Dreni got a copy of the passport, demonstrating another
dispute of fact and making summary judgment inappropriate. (Doc.
#241, pp. 14-16; Doc. #251.)
4
10
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of material fact that should be decided at trial.
A reasonable
factfinder could view Zaroui and 3 Amigos’ exhibits, weigh Dreni
and Zaroui’s testimony, and infer that Zaroui’s email account was
illegally accessed by Dreni.
The Court is also not persuaded that Zaroui’s statement that
“Skypoint
didn’t
liability.
hack
[his]
email,”
releases
Skypoint
of
The claim, as alleged, is asserted against Skypoint
and Dreni jointly and severally.
Zaroui’s deposition testimony is
clear that Zaroui believes Dreni accessed his email.
Based on the
record, the Court cannot say with any certainty that Dreni’s
alleged actions were not on behalf of Skypoint as managing member,
nor do the parties discuss this issue. 5
Accordingly, Skypoint and Dreni’s motions on the SCA claim
are denied.
C.
Tortious Interference with Contract Claim
3 Amigos asserts a tortious interference with contract claim
against Skypoint and Dreni, arising from Skypoint and Dreni’s
alleged interference with Kaufman’s post-production of the Movie.
“Generally, managing members, officers, directors and
shareholders are shielded from personal liability arising by
virtue of their relationship to the corporate entity.” NuVasive,
Inc. v. Absolute Med., LLC, No. 617CV2206ORL41GJK, 2019 WL 1468522,
at *4 (M.D. Fla. Feb. 11, 2019) (quotation omitted). Dismissing
the SCA claim against Skypoint at this time could also lead to
inconsistency given Dreni’s potential shield by Skypoint, as the
corporate entity.
5
11
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(Doc. #152, p. 35.)
At the pleading stage, Skypoint moved to
dismiss this claim, presenting, in essence, the same documents,
declarations, and arguments as Skypoint and Dreni do now.
#136.) 6
(Doc.
Skypoint and Dreni cite the same declaration from Kaufman.
(Id. pp. 15-18).
The Court has already discussed the disputed
nature of Kaufman’s declaration.
(Doc. #151, p. 13.)
The Court
stated in that Order:
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).
(Doc. #151, p. 14.)
After review of the summary judgment record,
genuine issues of material fact still exist.
Skypoint and Dreni’s
motions are denied.
Accordingly, it is now
ORDERED:
1.
Dreni’s
motion
for
summary
judgment
(Doc.
#241)
is
DENIED.
In that Order, the Court considered Counterclaim Plaintiffs
first Counterclaim, which asserted a tortious inference with
contract claim on behalf of all Counterclaim Plaintiffs. The Court
dismissed without prejudice, with leave to amend, the claim as it
related to Zaroui, Crawford, and BlackburnSteele because the three
were not a party to the alleged contract. (Doc. #122; Doc. #151.)
The operative Counterclaim limited the claim to 3 Amigos only;
however, the alleged underlying facts remain the same. (Compare
Doc. #122 p. 25-26 with Doc. #152, p. 30-31.)
6
12
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2.
Skypoint’s motion for summary judgment (Doc. #239) is
DENIED.
DONE and ORDERED at Fort Myers, Florida, this
of December, 2021.
Copies:
Counsel of Record
13
27th
day
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