Syaqua Americas, Inc. v. American Mariculture, Inc. et al
ORDER granting in part and denying in part 70 Motion to Strike as to defendant American Mariculture, Inc. as to Counts I, II, IV, V, VI, VII, VIII, IX and X of the Second Amended Verified Complaint for Injunctive and Other Relief Including Decl aratory Judgment. The 70 Demand for Jury Trial is stricken as to defendant American Mariculture, Inc. on these claims. The motion is otherwise denied and the case remains a jury trial. See ORDER for details. Signed by Judge John E. Steele on 7/19/2021. (FWH)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SYAQUA AMERICAS, INC., a
AMERICAN MARICULTURE, INC.,
a Florida corporation,
AMERICAN PENAEID, INC., a
Florida corporation, ROBIN
PEARL, ADVANCED HATCHERY
TECHNOLOGY, INC., CHARLES
T. TUAN, JINYUAN WU and
BERRY AMRU EMIRZA,
OPINION AND ORDER
This matter comes before the Court on review of plaintiff’s
Motion to Strike Defendants’ Jury Demand (Doc. #70) filed on
January 5, 2021.
Defendants American Mariculture, Inc., American
Penaeid, Inc., and Robin Pearl filed a Response in Opposition (Doc.
#85) on February 22, 2021, to which plaintiff filed a Reply (Doc.
#95) on March 19, 2021.
For the reasons set forth below, the
motion is granted in part and denied in part.
According to the relevant allegations and exhibits in the
Second Amended Verified Complaint for Injunctive and Other Relief
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plaintiff SyAqua Americas, Inc. and defendant American Penaeid,
plaintiff to export.
(Doc. #105, ¶ 55; Doc. #105-1.)
Memorandum was signed by defendant Robin Pearl, API’s president.
(Doc. #105-1, p. 4.)
Per the Second Amended Complaint, API is a
wholly owned subsidiary of defendant American Mariculture, Inc.
(“AMI”), and Pearl is the president and/or chief executive officer
of both corporations.
(Doc. #105, ¶¶ 12-16.)
In 2019, plaintiff and AMI entered into a second agreement,
the Production Agreement, for the purpose of producing shrimp for
The Production Agreement had an initial
five-year term ending in September 2023, but provides either party
may terminate for cause.
(Id. pp. 2-3.)
“Cause” is defined as,
inter alia, an “intentional act of fraud, theft or any other
confidential information,” a “breach of any obligation” under the
(Id. p. 3.)
The agreement contains a jury trial waiver
provision, and is signed by Pearl on behalf of AMI.
(Id. pp. 7,
In March 2020, plaintiff sent AMI notice of AMI’s defaults
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terminated the contract with cause in July 2020.
(Doc. #105, ¶¶
Plaintiff initiated this matter in September 2020 and
filed the Second Amended Complaint on July 8, 2021 against AMI,
API, and Pearl, as well as defendants Advanced Hatchery Technology,
Inc., Charles T. Tuan, Jinyuan Wu, and Berry Amru Emirza.
essence the Second Amended Complaint alleges plaintiff developed
agreements with AMI, API, and Pearl to farm the shrimp for eventual
sale to markets in Asia. Plaintiff alleges these defendants and/or
their agents breached the agreements, misappropriated the genetic
material, and created their own genetic lines of shrimp.
Plaintiff asserts the following claims against the various
defendants: (1) trade secret misappropriation in violation of 18
U.S.C. § 1836; (2) trade secret misappropriation in violation of
declaratory relief under 28 U.S.C. § 2201; (5) unfair competition
in violation of 15 U.S.C. § 1125; (6) unfair competition in
conspiracy; and (10) breach of the duty of good faith and fair
(Id. pp. 29-48.)
In December 2020, AMI, API, and Pearl (collectively, “the AMI
defendants”) filed a Demand for Jury Trial, requesting “trial by
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jury on all claims so triable, except that of Breach of Contract
relating to the Production Agreement.” 1
(Doc. #69, p. 2.)
response, plaintiff filed the instant motion seeking to strike the
jury demand, arguing (1) the AMI defendants are bound by the
Production Agreement, (2) the Production Agreement contains a jury
waiver provision, and (3) the jury waiver provision applies to all
claims alleged in the Second Amended Complaint.
AMI defendants disagree, arguing (1) Pearl and API are not bound
by the jury waiver because they are not parties to the Production
Agreement, (2) the majority of the claims relate to the Memorandum,
which does not have a jury waiver provision, and (3) the jury
waiver provision in the Production Agreement should be construed
The matter is now ripe for review.
“A party may validly waive its Seventh Amendment right to a
jury trial so long as the waiver is knowing and voluntary.”
Bakrac, Inc. v. Villager Franchise Sys., Inc., 164 F. App’x 820,
823–24 (11th Cir. 2006) (citing Brookhart v. Janis, 384 U.S. 1, 4–
“[W]hile ‘the seventh amendment right is . . . a
fundamental one,’ courts have recognized that ‘it is one that can
be knowingly and intentionally waived by contract.’”
Count Three of the Second Amended Complaint, the breach of
contract claim, is based upon alleged breaches of both the
Memorandum and the Production Agreement. (Doc. #105, pp. 36-39.)
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Brown & Brown of Fla., Inc., 806 F. App’x 824, 827 (11th Cir. 2020)
(quoting Leasing Serv. Corp. v. Crane, 804 F.2d 828, 832 (4th Cir.
The knowing and voluntary nature of the jury waiver in
the Production Agreement is not challenged.
The issues before the
Court are (1) which of the AMI defendants are bound by the
Production Agreement’s jury waiver, and (2) which, if any, of the
claims in the Second Amended Complaint fall within the scope of
the jury waiver.
The Court will discuss these issues in turn.
A. Parties Bound by the Waiver
contains the jury waiver provision, are plaintiff and AMI. 2
#105-3, p. 7, 9.)
The AMI defendants argue that “[a] waiver by
one party cannot bind other parties,” and therefore plaintiff has
failed to demonstrate that API or Pearl waived the right to a trial
(Doc. #85, pp. 6-7.)
Plaintiff responds that it has
clearly alleged in its complaint that the AMI defendants “are one
and the same,” that AMI and API are Pearl’s alter ego, and that
API is Pearl and AMI’s alter ego.
(Doc. #95, p. 2.)
Pearl signed the Production Agreement on behalf of AMI in
his role as president.
See N. Am. Clearing, Inc. v. Brokerage
Comput. Sys., Inc., 2009 WL 1513389, *6 (M.D. Fla. May 27, 2009)
(“[L]anguage identifying the person signing the document as a
corporate officer or something similar . . . does not create
personal liability for the person signing a contract to which he
or she is not a specified party, unless the contract contains
language indicating personal liability or the assumption of
personal obligations.” (citation omitted)).
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further contends that because “the claims against the parent
company AMI and its subsidiary API are based on the same facts and
are inherently inseparable,” the Court may enforce the jury waiver
(Id. p. 3.)
The Court finds neither of plaintiff’s
The Second Amended Complaint contains a section dedicated to
“ALTER EGO ALLEGATIONS” in which plaintiff alleges, inter alia,
that AMI is the alter ego of API, and Pearl is the alter ego of
both AMI and API.
(Doc. #105, pp. 6-7.)
Plaintiff suggests that
because it has clearly alleged an alter ego relationship, API and
Pearl are bound to the Production Agreement signed by AMI.
#95, p. 2.)
The Court disagrees.
Even if plaintiff’s alter ego
allegations are legally sufficient—an issue the Court need not
decide at this time—they are still only allegations.
fundamental right a defendant has to a jury trial, the Court
declines to find API and Pearl are bound by AMI’s jury waiver
simply due to plaintiff’s alter ego allegations. 3
Plaintiff also asserts that because API is a subsidiary of
AMI, the Court may enforce AMI’s jury waiver against API.
#95, p. 3); see also J.J. Ryan & Sons, Inc. v. Rhone Poulenc
Textile, S.A., 863 F.2d 315, 320-21 (4th Cir. 1988) (“When the
If the Court subsequently determines Pearl and API are alter
egos of AMI, for example on summary judgment, this issue can be
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charges against a parent company and its subsidiary are based on
the same facts and are inherently inseparable, a court may refer
claims against the parent to arbitration even though the parent is
not formally a party to the arbitration agreement.”).
plaintiff cites various cases in which a court found a principal’s
jury waiver agreement applied to its employees or agents. However,
in each of these cases the employees or agents were seeking to
invoke the waiver agreed to by the principal.
See Tracinda Corp.
v. DaimlerChrysler AG, 502 F.3d 212, 225 (3d Cir. 2007) (“[W]e
conclude that, when a valid contractual jury trial waiver provision
applies to a signatory corporation, the waiver also applies to
nonsignatory directors and officers seeking to invoke the waiver
as agents of the corporation.”); Hamilton v. Sheridan Healthcorp,
Inc., 2014 WL 537343, *3 (S.D. Fla. Feb. 11, 2014) (“Where a
principal has signed a contract containing a jury waiver clause,
its employees and agents may also enforce the waiver with regard
to claims arising from acts taking within the scope of their
employment or agency.”).
In contrast, here API and Pearl are
seeking to avoid the jury waiver, which, as the Third Circuit
noted, “is not a ‘distinction without a difference.’”
Corp., 502 F.3d at 224 (distinguishing situations in which nonsignatory agents sought to invoke an arbitration agreement entered
into by their corporate principal from situations in which non-
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signatory agents sought to avoid their principal’s arbitration
Having considered the arguments of the parties, the Court
finds the record insufficient at this time to determine whether
Accordingly, the Court will deny without
prejudice the motion to strike as to API and Pearl, and focus the
remaining analysis as to the claims alleged against AMI. 4
B. Claims Within the Scope of the Waiver
Plaintiff has asserted ten claims against AMI: (1) trade
secret misappropriation in violation of 18 U.S.C. § 1836; (2) trade
secret misappropriation in violation of § 688.002 et seq., Fla.
Stat.; (3) breach of contract; (4) declaratory relief under 28
U.S.C. § 2201; (5) unfair competition in violation of 15 U.S.C. §
1125; (6) unfair competition in violation of § 501.201 et seq.,
interference with a contract; (9) conspiracy; and (10) breach of
the duty of good faith and fair dealing.
(Doc. #105, pp. 29-48.)
As noted, the breach of contract claim alleges breaches of both
the Memorandum and the Production Agreement.
(Id. pp. 36-38.)
As noted, AMI is a party to the Production Agreement and
therefore bound by the jury waiver provision. Furthermore, AMI
does not argue that its waiver was not knowingly and intentionally.
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AMI concedes in its demand that it is not entitled to a jury trial
(Doc. #69, p. 2.)
Accordingly, the Court will focus
on the remaining claims.
Paragraph 12 of the Production Agreement states, “The parties
waive any right to a trial by jury in the event of litigation
arising out of this Agreement.”
(Doc. #105-3, p. 7.)
a clause requiring arbitration, the Court focuses “on whether the
tort or breach in question was an immediate, foreseeable result of
the performance of contractual duties.”
Telecom Italia, SpA v.
Wholesale Telecom Corp., 248 F.3d 1109, 1116 (11th Cir. 2001).
“The term ‘arising out of’ is broad, but it is not all
Doe v. Princess Cruise Lines, Ltd., 657 F.3d 1204,
1218 (11th Cir. 2011).
Disputes “that are not related-with at
least some directness-to performance of duties specified by the
contract do not count as disputes ‘arising out of’ the contract.”
Telecom Italia, 248 F.3d at 1116.
The Florida Supreme Court has
held that the term “‘arising out of’ is broader in meaning than
the term ‘caused by’ and means ‘originating from,’ ‘having its
origin in,’ ‘growing out of,’ ‘flowing from,’ ‘incident to’ or
‘having a connection with.’”
Taurus Holdings, Inc. v. U.S. Fid.
& Guar. Co., 913 So. 2d 528, 539 (Fla. 2005) (citation omitted);
see also James River Ins. Co. v. Ground Down Eng’g, Inc., 540 F.3d
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contemplates a more attenuated link than the phrase ‘because of.’”
(quoting Garcia v. Fed. Ins. Co., 969 So. 2d 288, 293 (Fla.
As the jury waiver is limited to litigation “arising out of”
the Production Agreement, it is necessary to first examine what
the Production Agreement encompasses.
Per the agreement, the
parties were seeking to have plaintiff produce shrimp breeders at
AMI’s breeding facility for export.
(Doc. #105-3, p. 2.)
agreement provides that “AMI may not sell or use any SyAqua Animals
or their offspring as breeders or gametes for their own or other
breeding programs,” that “AMI will not mix, use or in any other
way incorporate any SyAqua genetics with its AMI genetic program,”
and that “AMI also agrees that SyAqua genetics may not be used by
production or breeders sales.”
(Id. pp. 2, 5.)
provision applies during the term of the Production Agreement “and
for two years following termination for any cause.”
(Id. p. 5.)
The Production Agreement also contains the following competitive
a. Neither of the parties may knowingly or purposely
circumvent, or cause the breach of, or undermine an
exisiting [sic] breeders sales contract. Both companies
are free to offer their breeders on a best effort’s basis
to existing or potential customers worldwide. Both
parties agree to compete in an honest and ethical way.
Both parties agree not to disparage or make false claims
about each other in any way, while this Agreement is in
force and for one year after the Termination Date.
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(Id. p. 4.)
As noted, under the agreement either party may
terminate for cause, including for the “intentional act of fraud,
theft or any other material violation of law,” an “intentional
obligation” under the agreement, or an “intentional engagement in
any competitive activity which would constitute a breach of duty”
under the agreement.
(Id. p. 3.)
Complaint, the Court finds that with one exception, all of the
claims arise out of the Production Agreement.
Counts One and Two
allege the defendants misappropriated plaintiff’s trade secrets in
violation of the provisions of the Production Agreement by, inter
alia, creating genetic lines of shrimp via the unauthorized use of
plaintiff’s genetics and/or germplasm.
(Doc. #105, ¶¶ 153-59,
Count Four seeks declaratory relief regarding the terms
of and obligations under the Production Agreement.
(Id. ¶ 201.)
plaintiff’s trade secrets to unfairly compete with plaintiff, and
made false and misleading statements to suggest an association
broodstock/genetics. (Id. ¶¶ 204-09, 216-17.) Count Seven alleges
plaintiff has a business expectancy in the Asian broodstock shrimp
market given plaintiff’s trade secrets, name and reputation, and
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that the defendants knowingly interfered with that expectancy.
(Id. ¶¶ 224-27.)
Similarly, Count Eight alleges the defendants
knowingly interfered with plaintiff’s contracts with its customers
in Asia to provide plaintiff’s broodstock shrimp.
(Id. ¶¶ 230-
Count Nine alleges the defendants conspired to, inter alia,
misappropriate plaintiff’s trade secrets, violate the Production
Agreement, and unfairly compete against plaintiff.
(Id. ¶¶ 235-
39.) Finally, Count Ten alleges the defendants breached the duties
contracts by breaching the express provisions of the Production
(Id. ¶¶ 247-49.)
The Court finds that each of these
claims are related to performance of duties specified by the
Production Agreement, that the Production Agreement provides a
underlying the claims, and that each claim arises out of the
Accordingly, the Court finds that each of
provision of the Production Agreement, and that AMI has waived its
right to a jury trial on these claims.
As noted, the Court’s ruling applies to all claims with one
exception: the breach of contract claim in Count Three.
Agreement, it clearly arises from the Production Agreement and
falls within the scope of the jury waiver.
However, Count Three
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also alleges the defendants breached the Memorandum.
¶¶ 185, 188, 191, 193.)
The Memorandum does not have a jury
waiver, and to the extent AMI can be considered a party to the
Memorandum—a determination the Court need not make presently—AMI
cannot be said to have waived its right to a jury trial for the
alleged breach. 5
Accordingly, it is hereby
Plaintiff’s Motion to Strike Defendants’ Jury Demand (Doc.
#70) is GRANTED in part and DENIED in part as follows:
1. The motion is denied without prejudice as to defendants
American Penaeid, Inc. and Robin Pearl.
2. The motion is granted as to defendant American Mariculture,
Inc. as to Counts I, II, IV, V, VI, VII, VIII, IX and X of
the Second Amended Verified Complaint for Injunctive and
The Production Agreement contains a provision stating it
constitutes the entire agreement “and supersedes all prior
agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof.” (Doc. #1053, p. 8.)
Plaintiff relies upon this provision to argue the
Memorandum’s obligations became integrated and governed by the
Production Agreement. (Doc. #95, p. 2.) Even if this is true,
plaintiff has not alleged the defendants breached the Production
Agreement by failing to meet the obligations of the Memorandum;
rather, plaintiff has specifically alleged a breach of the
Memorandum. Accordingly, the Court finds the jury waiver provision
in the Production Agreement does not apply to the alleged breach
of the Memorandum.
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Other Relief Including Declaratory Judgment.
for Jury Trial (Doc. #69) is stricken as to defendant
American Mariculture, Inc. on these claims.
3. The motion is denied as to defendant American Mariculture,
Inc. as to the portion of Count III alleging a breach of
the Memorandum of Understanding.
DONE and ORDERED at Fort Myers, Florida, this
of July, 2021.
Counsel of Record
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