Astro Tel, Inc. v. Verizon Florida LLC et al

Filing 108

ORDER: Defendants Verizon Florida, LLC and Verizon Communications, Inc.'s Sealed Motion for Final Summary Judgment 94 is GRANTED. The Clerk is directed to enter Judgment in favor of Defendants Verizon Florida, LLC and Verizon Communications, Inc. and thereafter to CLOSE THE CASE. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 10/25/2013. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ASTRO TEL, INC.,
Plaintiff,
v.

Case No. 8:11-cv-2224-T-33TBM

VERIZON FLORIDA, LLC and
VERIZON COMMUNICATIONS, INC.,
Defendants.
________________________________/
ORDER
Defendants

Verizon

Florida,

LLC

and

Verizon

Communications, Inc. (collectively “Verizon”) filed their
Sealed Motion for Final Summary Judgment (Doc. # 94) on August
8, 2013. Plaintiff Astro Tel, Inc., filed its Sealed Response
in Opposition to the Motion for Summary Judgment (Doc. # 100)
on August 29, 2013. Verizon filed a Sealed Reply on September
20, 2013. (Doc. # 107).1

For the reasons that follow, the

Court grants Verizon’s Motion for Summary Judgment.
I.

Background
A.

1

Astro Tel’s Services

Although the parties' submissions before the Court were
filed under seal, the Court declines to file the present Order
under seal. "The operations of the courts and the judicial
conduct of judges are matters of utmost public concern and the
common-law right of access to judicial proceedings, an
essential component of our system of justice, is instrumental
in securing the integrity of the process." Romero v. Drummond
Co., 480 F.3d 1234, 1245 (11th Cir. 2007)(internal citations
omitted).

Founded in 2001, Astro Tel formerly provided telephone
and internet services to customers in Florida until it filed
for bankruptcy and ultimately sold its assets to a third
party, Birch Communications, for $750,000 in April of 2012.
(Ray Aff. Doc. # 101 at ¶ 19).

According to its founder and

president, Mike Ray, “Astro Tel was smaller than most” local
carriers. (Ray Dep. Vol. 2 Doc. # 94-1 at 263:4-5). Astro Tel
serviced between 24 to 600 customers in any given year. (Ray
Dep. Vol. 1 Doc. # 94-3 at 21:3-5, 74:8).

Astro Tel also

acted as a wholesaler, providing services to businesses that
would, in turn, resell such services in the retail market.
(Id. at 26:4-25).
In his affidavit, Mr. Ray described some of Astro Tel’s
offerings as follows:
local telephone service, long distance telephone
service, internet access service, domain name
service, DNS service, virus and spam filtering
service for email, email boxes with customer’s
domain, our SmartMail FAX service which accepts
faxes and then converts them to email, our
SmartMail voice service which accepts voicemail
messages and converts them to email, Hosted PBX
service which provides telephone system equipment
along with the carrier telephone service, and
Failure Recovery Service which limited damage to a
business during any telecommunications outage.
(Ray Aff. Doc. # 101 at ¶ 3).
Mr. Ray testified that, in providing these services,

2

Astro Tel competed with Daystar, Bright House, Comcast, and
Verizon. (Ray Dep. Vol. 1 Doc. # 94-3 at 246:13-14).
B.

Astro Tel’s Relationship with Verizon

In addition to competing with Verizon, Astro Tel also
purchased services and network facilities on a wholesale basis
from Verizon. (Ray Aff. Doc. # 101 at ¶¶ 1-4).
Astro

Tel

responsible

resold
for

Verizon’s

installing

services,

services

network. (Id. at ¶¶ 7, 11).

and

Even though

Verizon

remained

maintaining

its

Mr. Ray indicates in his

affidavit that “the elements obtained from Verizon were an
integral part” of Astro Tel’s business model. (Id. at ¶ 3).
Mr. Ray provides the following example of how Astro Tel worked
with Verizon to provide telecommunications services to Astro
Tel clients:
Plain Old Telephone Service or POTS, is an
industry-standard service upon which many devices
and applications rely. . . .
Astro Tel had two
ways that it could offer POTS service of the same
character and quality of Verizon’s POTS service.
It could resell Verizon’s service and rebill that
service to its subscriber. It could also lease the
copper wire Unbundled Network Element (“UNE”) from
Verizon . . . .
(Id. at ¶ 4).
Mr. Ray further explains that “[w]hen ordering a new
telephone line for an AstroTel subscriber, AstroTel was first
required to validate the subscriber’s address in a Verizon
3

ordering system. . . . Once validated, AstroTel would reserve
a telephone number for the new service.

Then, AstroTel would

place an order for the line in the Verizon . . . [ordering]
system.” (Id. at ¶ 7).
Mr. Ray was not satisfied with Verizon’s customer service
practices and theorizes that Astro Tel’s business suffered
when Verizon failed to promptly address certain network issues
or failed to install services for Astro Tel customers on a
timely basis. (Id. at ¶ 11).

Astro Tel documented its

business activities, including Verizon’s network maintenance
issues, with service “tickets.” (Id. at ¶ 6).

The parties

agree that Astro Tel generated approximately 40,000 service
tickets during its years of operation. (Id.; Doc. # 94 at 2).
Astro Tel has come forward with several service tickets
documenting situations where Verizon allegedly failed to
install or maintain telecommunications services for Astro
Tel’s customers. See, e.g., (Doc. # 101 at FC-23) (indicating
that Verizon failed to install telecommunications equipment in
February of 2003); (Id. at FC-28) (indicating that Verizon
failed to promptly install telecommunications equipment in
February of 2010).2

Notably, Astro Tel has not provided any

2

In connection with its Mr. Ray’s Affidavit (Doc. # 101),
Astro Tel has submitted a binder of exhibits classified by
4

tickets documenting instances when Astro Tel “put an order
with Verizon and it went through smoothly.” (Ray Dep. Vol. 2
Doc. # 94-1 at 287:8-11).
Although Astro Tel theorizes that some of its customers
cancelled services due to Verizon’s failure to install and
maintain

network

components,

Mr.

Ray

testified

that,

“generally, once a customer decided to leave, we wouldn’t know
why they decided to leave, only that they decided to leave.”
(Id. at 256:18-20).

Mr. Ray also indicated that some Astro

Tel customers left because they moved, because competitors
offered different services or better prices, or because they
failed to pay their bills. (Id. at 247:20-249:5).
Verizon concedes that “approximately 15 customers between
2005 and 2011, an average of two customers per year, canceled
service [with Astro Tel] after [making] complaints about
service issues for which Verizon was allegedly responsible.”
(Doc. # 94 at 11).
Mr. Ray also suspected that Verizon, privy to Astro Tel’s
customer information based on its relationship with Astro Tel,
inappropriately

utilized

Astro

Tel’s

private

customer

information to solicit Astro Tel’s customers. (Ray Aff. Doc.

Astro Tel under the categories FC, EX, AP, and PHB (among
others).
5

# 101 at ¶ 12).
telemarketing

On at least one occasion, Verizon, using a

agency

known

as

Americom,

called

Mr.

Ray

(presumably unaware that he was the owner of Astro Tel) and
attempted to sway him to switch to Verizon.
Doc. # 101 at AP-80).

(Id. at ¶ 13;

Mr. Ray recorded the call, and during

such call, the Americom representative noted to Mr. Ray that
“Astro Tel is a Verizon reseller.” (Doc. # 101 at AP-80 at
6:18).

Mr. Ray searched Astro Tel’s records and determined

that the “Americom office had placed 197 calls to Astro Tel
numbers.” (Ray Aff. Doc. # 101 at ¶ 15).

Mr. Ray also

utilized “fictitious customer names of ‘Dorian Gray’ and ‘Tel
Astro’” and ordered Astro Tel services to be installed by
Verizon. (Id. at ¶ 12). Thereafter, both fictitious customers
received marketing materials from Verizon. (Id.; Doc. 101 at
Ex. 55).
In addition to marketing to Astro Tel’s customers, Mr.
Ray asserts that Verizon inaccurately invoiced Astro Tel,
leading

to

service

disruptions.

Astro

Tel

and

Verizon

submitted their billing disputes to arbitration, and the
arbitrator found in favor of Verizon. (Doc. # 94-14).

The

arbitrator ordered Astro Tel to pay Verizon $500,000 in unpaid
invoices, sending Astro Tel into bankruptcy.
On

March

29,

2011,

Astro
6

Tel

filed

an

adversary

proceeding, 8:11-ap-00342-MGW, in Bankruptcy Court against
Verizon alleging violation of federal antitrust law, violation
of the federal RICO statute, and asserting a broad array of
state claims, such as business defamation. Verizon petitioned
this Court for an Order withdrawing the reference from the
bankruptcy

court,

and

this

Court

withdrew

the

reference

pursuant 28 U.S.C. § 157(d) on September 30, 2011. (Doc. ## 1,
5).

Among other determinations, this Court found that the

“resolution of Astro Tel’s Complaint will require substantial
and material consideration of the Sherman Act [and] the RICO
Act.” (Doc. # 5 at 4).
Verizon sought the dismissal of Astro Tel’s Complaint,
and in an Order dated May 4, 2012, the Court granted the
motion to dismiss in part and denied the motion to dismiss in
part. (Doc. # 49). In the same Order, the Court granted Astro
Tel leave to amend.
its

Second

Amended

(Id.).

On May 15, 2012, Astro Tel filed

Complaint,

which

is

the

operative

Complaint, containing the following counts against Verizon:
(1) Sherman Act, Section 2, 15 U.S.C. § 2 Monopolization; (2)
Sherman

Act,

Section

2,

15

U.S.C.

§

2

Attempted

Monopolization; (3) Sherman Act, Section 2, 15 U.S.C. § 2
Monopoly Leveraging; (4) Civil RICO in violation of 18 U.S.C.

7

§ 1962; (5) Tortious Interference with Contract; (6) Unfair
Competition; (7) Business Defamation and Disparagement; and
(8) Civil Conspiracy.3 (Doc. # 52).
At this juncture, Verizon seeks summary judgment as to
each count of Astro Tel’s Second Amended Complaint.
II.

Legal Standard
Summary judgment is appropriate “if the movant shows that

there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).

Fed. R.

A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude a
grant of summary judgment.

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.

Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)).

3

A fact is material if

Astro Tel’s Complaint also contains a ninth “count”
seeking injunctive relief.
Rather than a separate,
substantive count, count nine merely contains a prayer for
relief.
8

it may affect the outcome of the suit under the governing law.
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997).

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).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to be
true and all reasonable inferences must be drawn in the nonmoving party’s favor.

Shotz v. City of Plantation, Fla., 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder
evaluating the evidence could draw more than one inference
from the facts, and if that inference introduces a genuine
issue of material fact, the court should not grant summary

9

judgment.

Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988) (citing Augusta Iron & Steel
Works, Inc. v. Employers Ins. of Wausau, 835 F.2d 855, 856
(11th Cir. 1988)).
consists

of

conclusional

However, if the non-movant’s response

nothing

“more

allegations,”

proper, but required.

than

summary

a

repetition

judgment

is

of
not

his
only

Morris v. Ross, 663 F.2d 1032, 1034

(11th Cir. 1981), cert. denied, 456 U.S. 1010 (1982).
III. Analysis
A.

Sherman Act Antitrust Claims - Counts 1-3

Astro

Tel

alleges

three

antitrust

claims

violations of Section 2 of Sherman Act,
monopolization,

attempted

based

on

15 U.S.C. § 2,

monopolization,

and

monopoly

leveraging.
The offense of monopolization has two elements: “(1) the
possession of monopoly power in the relevant market and (2)
the willful acquisition or maintenance of that power. . . .”
U.S.

v.

Grinnell

Corp.,

384

U.S.

563,

570-71

(1966).

Likewise, “the plaintiff charging attempted monopolization
must prove a dangerous probability of actual monopolization,
which has generally required a definition of the relevant
market and examination of market power.” Spectrum Sports v.

10

McQuillan, 506 U.S. 447, 455 (1993).

Similarly, monopoly

leveraging involves an entity using its market power in one
market to gain more market share in another market. See
Aquatherm Indus., Inc. v. Fla. Power & Light Co., 145 F.3d
1258, 1262 (11th Cir. 1998).
With respect to all three of its Sherman Act claims,
Astro Tel bears the burden of defining the relevant antitrust
markets.

Astro

Tel’s

Second

Amended

Complaint

contains

allegations regarding the contours of the relevant antitrust
markets germane to its Sherman Act claims. (Doc. #
18, 24).4

52 at ¶¶

However, at the summary judgment stage, these

allegations must be buttressed by an evidentiary foundation.
Particularly, in the Eleventh Circuit, “[c]onstruction of the
relevant market and a showing of monopoly power must be based
on expert testimony.” Bailey v. Allgas, Inc., 284 F.3d 1237,
1246 (11th Cir. 2002).

4

Astro Tel incorrectly asserts that this Court previously
“found against” Verizon on this issue. (Doc. # 100 at 9).
The Court denied Verizon’s Rule 12(b)(6) motion to dismiss
after determining that Astro Tel’s operative Complaint
contained adequate market definitions to escape dismissal.
(Doc. # 49 at 8). At this stage of the proceedings, however,
Astro Tel must proffer evidence in support of its allegations.
Astro Tel has not done so with respect to its market
definitions. This is fatal to its antitrust claims.
11

“The

relevant

[geographic]

market

is

the

area

of

effective competition in which competitors generally are
willing to compete for the consumer potential, not the market
area of a single company.” Am. Key Corp. v. Cole Nat’l Corp.,
762

F.2d

1569,

1581

(11th

Cir.

1985)(internal

citation

omitted). “Measurement of the relevant geographic market
depends on a number of factors, including price data and such
corroborative

factors

as

transportation

costs,

delivery

limitations, customer convenience and preference, and the
location and facilities of other producers and distributors.”
Bailey, 284 F.3d at 1247. Measurement of the relevant product
market, on the other hand, requires consideration of “the
reasonable interchangeability of use or the cross-elasticity
of demand between the product itself and substitutes for it.”
Id. at 1246.
Astro Tel contends that it is not required to submit
expert testimony.

Rather, citing Tampa Bay Shipbuilding &

Repair Co. v. Cedar Shipping Co., 320 F.3d 1213 (11th Cir.
2003), Astro Tel asserts that it may offer lay testimony in
support of its antitrust claims and market definitions. Tampa
Bay Shipbuilding is inapposite to the present case.
the

district

court

considered

12

lay

testimony

There,

during

an

admiralty bench trial in which Tampa Bay Shipbuilding asserted
that Cedar Shipping failed to make payments for repair work
Tampa Bay Shipbuilding completed. Id. at 1216.

The Eleventh

Circuit determined that it was proper for the district court
to consider lay testimony in that scenario. Id. at 1223.
Notably, Tampa Bay Shipbuilding did not involve antitrust
claims.
Astro Tel’s position that it may support its antitrust
market definitions with lay testimony is in contravention of
Eleventh Circuit precedent.

See

Bailey, 284 F.3d at 1246;

Colsa Corp. v. Martin Marietta Servs. Inc., 133 F.3d 853, 855
(11th Cir. 1998)(“We have stated that [c]onstruction of a
relevant economic market or a showing of monopoly power in
that

market

cannot

.

testimony.”)(internal

.

.

be

citation

based

upon

omitted);

lay

opinion

Gulf

States

Reorganization Group, Inc. v. Nucor Corp., 822 F. Supp. 2d
1201,

1234

(N.D.

Ala.

2011)(“Eleventh

Circuit

precedent

requires an antitrust plaintiff to proffer expert testimony to
establish a relevant product market and a relevant geographic
market.”).
Astro Tel next attempts to persuade the Court that it
should be exempt from the Eleventh Circuit’s requirement that
it provide expert testimony in support of its antitrust market
13

definitions.

Astro

Tel

contends

that

“Verizon,

is

by

definition the incumbent local exchange carrier (‘ILEC’), and
is a monopoly as defined by 47 U.S.C. § 251.

It does not take

an expert to opine that it is in a position of monopoly
power.” (Doc. # 100 at 9).

Astro Tel cannot persuade the

Court that it excused from the requirement that its antitrust
market allegations be bolstered by expert testimony.
The Court concurs with Verizon that expert evidence is
needed because “multiple competitors - including incumbent
cable providers with ubiquitous wired networks - provided the
telecommunications services at issue.” (Doc. # 94 at 7).
According

to

Mr.

Ray,

Astro

Tel

competed

with

Daystar,

Brighthouse, Comcast, and Verizon. (Ray Dep. Vol. 2 Doc. # 941 at 246:13-14). In addition, Verizon points out that Astro
Tel was required to compete with wireless providers such as
Birch, Vonage, AT&T, Sprint, and T-Mobile. (Doc. # 94 at 7).
Furthermore,

Mr.

interconnection

Ray

testified

agreements

with

that

Astro

BellSouth,

Tel

had

Embarq,

and

Northeast Florida Telephone. (Ray Dep. Vol. 1 Doc. # 94-3 at
54:3-19; 29:21-30:4).

Moreover, Judy Morton, an Astro Tel

employee, admitted that Astro Tel resold telecom services from
incumbent local exchange carriers other than Verizon, such as
CenturyLink and AT&T. (Morton Dep. Doc. # 94-2 at 20:1-11).
14

Due to the complex web of telecommunications providers at
hand

and

the

varied

products

and

services

offered

to

consumers, expert testimony is a necessity for defining the
relevant antitrust geographic and product markets.

As the

court observed in Nucor Corp., the absence of expert testimony
by a plaintiff alleging Sherman Act monopoly claims is fatal.
822 F. Supp. 2d at 1235.

Thus, the Court grants summary

judgment in Verizon’s favor as to Astro Tel’s Sherman Act
claims asserted in counts one through three of the operative
Complaint.
B.

Civil RICO Claims - Count 4

The Racketeer Influenced and Corrupt Organizations Act,
18 U.S.C. § 1964, provides a cause of action for those private
parties who have been injured in their business or property by
reason of a RICO violation. Id. at § 1964(c).

To prove a

civil RICO claim, a plaintiff must show: “(1) that the
defendant (2) through the commission of two or more acts (3)
constituting a ‘pattern’ (4) of ‘racketeering activity’ (5)
directly

or

indirectly

[participates

in

the

specific

prohibited activity in] (6) an ‘enterprise’ (7) the activities
of which affect interstate or foreign commerce.” McCulloch v.
PNC Bank Inc., 298 F.3d 1217, 1225 (11th Cir. 2002).

15

As a plaintiff relying on violations of the wire or mail
fraud statutes as predicate acts for a civil RICO claim, Astro
Tel must show not only that those statutes were violated, but
also that it suffered an injury proximately caused by such
violations. Pelletier v. Zweifel, 921 F.2d 1465, 1499 (11th
Cir. 1991).
Verizon contends that Astro Tel has failed to proffer any
evidence that Verizon engaged in any unlawful activity that
could constitute a pattern of racketeering activity or that
Verizon conspired with another to do so. Verizon also asserts
that Astro Tel’s § 1962(b) “enterprise” claim fails for the
independent reason that Astro Tel cannot demonstrate that
Verizon acquired or maintained an interest in or control of a
RICO enterprise. Furthermore, Verizon contends that Astro Tel
has not proved that it suffered any injury caused by Verizon’s
alleged conduct.
In

response

to

Verizon’s

detailed

summary

judgment

arguments, Astro Tel has devoted only one paragraph of its
response to the Motion for Summary Judgment to discussing its
RICO contentions. (Doc. # 100 at 15-16).

In so doing, Astro

Tel has not identified any documents or other evidentiary
materials that may support its RICO claims. Nor has Astro Tel
explained how any of the evidence on file underpins its RICO
16

claims. As set forth below, Verizon is entitled to summary
judgment as to Astro Tel’s RICO claims.
1.

Pattern of Racketeering Activity

In response to Verizon’s Motion for Summary Judgment,
Astro Tel characterizes Verizon’s RICO predicate acts as: “the
telephone solicitation of 197 phone calls using CPNI; and the
illegal ‘winback campaign.’” (Doc. # 100 at 16).5
As noted, Astro Tel has submitted the affidavit of its
prior owner, Mr. Ray in connection with its response to the
Motion for Summary Judgment.

Therein, Mr. Ray describes his

“susp[icion] that Verizon was using AstroTel CPNI to target
and solicit AstroTel customers to switch back to Verizon.”
(Ray Aff. Doc. # 101 at ¶ 12).

Mr. Ray further describes a

scenario where an Americom telemarketer, at the behest of
Verizon, attempted to persuade him to purchase Verizon’s
services. During the call, the Americom employee indicated to
Mr. Ray that Astro Tel resells Verizon’s products.

Astro Tel

has also supplied the Court with marketing materials submitted
by Verizon to fictional customers fabricated by Mr. Ray as
“Dorian Grey” and “Tel Astro.”

5

As described in Mr. Ray’s affidavit, CPNI is “Customer
Proprietary Network Information.” (Ray Aff. Doc. # 101 at
¶ 12).
17

“The Eleventh Circuit has explained that mail or wire
fraud occurs when a person (1) intentionally participates in
a scheme to defraud another of money or property and (2) uses
the mails or wires in furtherance of that scheme.” McCulloch,
298 F.3d at 1225 (internal citation omitted). “Under the mail
and wire fraud statutes, a plaintiff must allege a scheme to
defraud wherein some type of deceptive conduct occurred.” Id.
Throughout this action, Astro Tel has maintained that, in
addition to providing its own services, it is a reseller of
Verizon’s services. See, e.g., (Ray Aff. Doc. # 101 at ¶ 4)
(explaining that Astro Tel “resell[s] Verizon’s service and
rebill[s] that service to its subscriber.”).
rejects

Astro

Tel’s

argument

that

This Court thus

Americom

engaged

in

“deceptive conduct” when it characterized Astro Tel as a
reseller of Verizon’s network.

The Court also notes that

Verizon’s submission of marketing materials to Astro Tel’s
customers (or to fictitious entities created by Mr. Ray) does
not constitute mail fraud or wire fraud.6
Astro Tel has been given an opportunity to show that
Verizon engaged in the predicate acts of mail fraud and/or
wire fraud. Astro Tel has not done so and summary judgment is

6

Astro Tel has not alleged that Verizon’s marketing
materials contained any false statements.
18

accordingly warranted in favor of Verizon as to Astro Tel’s
RICO claims.
2.

RICO Conspiracy

Summary Judgment is also required as to Astro Tel’s RICO
conspiracy claim because Astro Tel has not supported its
contention that Verizon conspired with another entity to
engage in a RICO violation.

It appears that Astro Tel’s

argument is that Verizon encouraged Americom, a telemarketing
agency,

to

provide

untruthful

telecommunications consumers.

information

to

Astro Tel has not buttressed

this contention with an evidentiary foundation.
Furthermore, Verizon has come forward with evidence that
it required its telemarketing agents, including Americom, to
execute a nondisparagement agreement applicable to Verizon’s
competitors. (Doc. ## 94-24, 94-25, 94-26).
submitted

evidence

telemarketing

that

vendors,

it

monitors

including

calls

Americom,

Verizon also
placed
to

by

ensure

compliance with Verizon’s standards. (Stenger Dep. Doc. # 9426 at 14:18-15:8).

Among other requirements, in its “Master

Agreement for Call Center Services” under the heading “Fair
Competition,” Verizon barred Americom from making “unfair,
misleading, or inaccurate comparisons with the products and
services of Verizon’s competitors.” (Doc. # 94-25 at 4).
19

Thus, even if the Court were to accept Astro Tel’s theory
that Americom made misrepresentations about Astro Tel to Mr.
Ray or to another consumer, because there is no evidence that
Americom did so at Verizon’s direction (and the evidence, in
fact, shows that Verizon sought to prevent such disparagement)
Astro Tel’s § 1962(d) conspiracy assertions fail.
Bare “suspicion, perception, opinion, and belief cannot
be used to defeat a motion for summary judgment.” LaRoche v.
Denny’s, Inc., 62 F. Supp. 2d 1366, 1371 (S.D. Fla. 1999).
“Further, and significantly, mere conclusory, uncorroborated
allegations by a plaintiff in an affidavit or deposition will
not create an issue of fact for trial sufficient to defeat a
well-supported motion for summary judgment.” Hansen v. Perry
Techs., 206 F. Supp. 2d 1223, 1225 (S.D. Fla. 2002).

Astro

Tel has not provided any evidence beyond mere speculation that
Verizon and Americom, or any other party, agreed to any
unlawful

scheme.

Summary

Judgment

in

favor

of

Verizon

concerning Astro Tel’s RICO conspiracy claim is therefore
required.
3.

RICO Enterprise

The Court also determines that Verizon is entitled to
summary judgmnet as to Astro Tel RICO enterprise claim. Astro
Tel has alleged that Verizon violated § 1962(b), which states:
20

“It shall be unlawful for any person through a pattern of
racketeering activity or through collection of an unlawful
debt to acquire or maintain, directly or indirectly, any
interest in or control of any enterprise which is engaged in,
or the activities of which affect, interstate or foreign
commerce.”
Astro Tel has not supplied the Court with evidence that
Verizon acquired or maintained an interest in or control of a
RICO enterprise through a pattern of racketeering activity.
Furthermore,

Astro

Tel

has

not

pointed

to

a

specific

“acquisition or maintenance injury [that is] distinct from
injury caused by the predicate acts.” Coursen v. JP Morgan
Chase

&

Co.,

8:12-cv-690-T-26EAJ,

2013

U.S.

144295, at *43 (M.D. Fla. June 27, 2013).

Dist.

LEXIS

Based on Astro

Tel’s complete lack of evidence tendered in support of its
RICO enterprise claim, the Court grants Verizon’s Motion for
Summary Judgment as to such claim.
4.

RICO Causation

Putting aside the dearth of evidence in support of Astro
Tel’s

mail

and

wire

fraud

RICO

allegations,

Verizon

is

entitled to summary judgment on the RICO claims because Astro
Tel has not offered evidence of causation.

As observed by

Verizon, “Astro Tel has proffered no evidence to support the
21

claim that any customer cancelled service in reliance on any
misrepresentation by Verizon or anyone purporting to speak on
Verizon’s behalf.” (Doc. # 94 at 19).
In Beck v. Prupis, 162 F.3d 1090, 1095-97 (11th Cir.
1998), the court explained that “a civil RICO plaintiff must
show that the racketeering activity caused him to suffer an
injury.”

Astro Tel has not shown that it lost any business

due to alleged RICO mail or wire fraud. As explained in Moore
v. Tolbert, 490 F. App’x 200, 206 (11th Cir. 2012), “To
prevail on their RICO claim, [plaintiffs] had to show that
they suffered an injury by reason of the defendants’ RICO Act
violations.

A plaintiff meets the ‘by reason of’ requirement

if he shows a sufficiently direct injury from the RICO
violations and proximate cause.” (internal citations omitted).
Astro Tel has not presented evidence to support its
allegation that it has been injured due to Verizon’s alleged
RICO violations.

“Summary Judgment is appropriate where the

moving party shows an absence of evidence to support an
essential element of the non-moving party’s case.” Beck, 162
F.3d at 1096. Verizon has demonstrated such an absence of
evidence of causation, and accordingly, summary judgment is
warranted as to the RICO claims.
C.

Tortious Interference with a Contract - Count 5
22

The

required

elements

of

a

claim

for

tortious

interference with a contractual or business relationship under
Florida law are: “(1) the existence of a business relationship
that affords the plaintiff existing or prospective legal
rights;

(2)

the

defendant’s

knowledge

of

the

business

relationship; (3) the defendant’s intentional and unjustified
interference with the relationship; and (4) damage to the
plaintiff.” Int’l Sales & Serv., Inc. v. Austral Insulated
Prods., Inc., 262 F.3d 1152, 1154 (11th Cir. 2001) (quoting
Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So. 2d 812,
814 (Fla. 1994)).7
“[A] plaintiff may properly bring a cause of action
alleging tortious interference with present or prospective
customers

but

no

cause

of

action

exists

for

tortious

interference with a business’s relationship to the community
at large.”

Ethan Allen, Inc., 647 So. 2d at 814 (citing S.

Alliance Corp. v. Winter Haven, 505 So. 2d 489, 496 (Fla. 2d
DCA 1987)). See also Ferguson Transp. Inc. v. N. Am. Van
Lines, Inc., 687 So. 2d 821, 821 (Fla. 1996)(“[T]o establish

7

“Tortious interference with a contract and tortious
interference with a business relationship are basically the
same cause of action. The only material difference appears to
be that in one there is a contract and in the other there is
only a business relationship.” Cent. States, S.E. & S.W. v.
Fla. Soc’y of Pathologists, 824 So. 2d 935, 940 (Fla. 5th DCA
2002).
23

the

tort

of

tortious

interference

with

a

business

relationship, the plaintiff must prove a business relationship
with identifiable customers.”); Sarkis v. Pafford Oil Co.,
Inc., 697 So. 2d 524, 526-27 (Fla. 1st DCA 1997)(dismissing
complaint that alleged “general loss of business” and that
failed to “identify the customers who were the subject of the
alleged interference”).
To be actionable, “the interference must be direct;
conduct that has only indirect consequences on the plaintiff
will not support a claim of tortious interference.” Williamson
v. Sacred Heart Hosp., No. 89-30084, 1993 U.S. Dist. LEXIS
20853, at *155 (N.D. Fla. May 28, 1993).

Finally, “for the

interference to be unjustified, the interfering defendant must
be a third party, a stranger to the business relationship.”
Salit v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 742
So. 2d 381, 386 (Fla. 4th DCA 1999).
As framed by the operative Complaint, Astro Tel seeks
damages for tortious interference with a contract. This claim
however, succumbs to Verizon’s Motion for Summary Judgment, as
explained below, because Astro Tel has not identified a
specific contract that Verizon intentionally interfered with.
In addition, Astro Tel has not shown that Verizon’s actions
were

intended

to

harm

Astro
24

Tel

or

that

such

actions

constituted

direct

interference

with

its

customer

relationships. Last, Astro Tel has not demonstrated that
Verizon was a stranger to Astro Tel’s relevant customer
relationships.
1.

Astro Tel’s Identified Evidence

In its Response in Opposition to Verizon’s Motion for
Summary Judgment, Astro Tel points the Court to six documents
in

support

commenting

of

its

tortious

interference

claim

without

on why these documents support its claim. (Doc. #

101 at FC-23, FC-25, AP-87, FC-27, FC-28, and FC-29).
a.

Service Tickets

FC-23 is an Astro Tel service ticket suggesting that
Verizon did not install ordered telecommunications services in
February of 2003. Likewise, FC-28 is an Astro Tel service
ticket purporting to show that Verizon did not install ordered
telecommunications services in February of 2010.
b.

Estimates

FC-25 and FC-27 are two “Proposal Estimate[s]” provided
to Mr. Ray from Verizon offering to provide telecommunications
services.
c.

Email Communications

FC-29 and AP-87 are two email communications authored by
Mr. Ray.

Specifically, FC-29 is Mr. Ray’s June 24, 2008,
25

email addressed to “Clayton;” however, the “to” line on the
email shows that the email was sent to Mr. Ray.8

In the

email, Mr. Ray complains that a Verizon employee allegedly
made confusing statements to an Astro Tel customer regarding
repair times for Astro Tel’s customers.
AP-87

is

an

August

19,

2011,

email

sent

to

representative at the Florida Public Service Commission.

a
In

the email, Mr. Ray describes an incident where a Verizon
employee allegedly improperly installed telecommunications
services and did not follow up with the consumer.
2.

Verizon is Entitled to Summary Judgment as to
Astro Tel’s Tortious Interference Claim

The six documents Astro Tel has identified in support of
its tortious interference claim do not satisfy Astro Tel’s
burden at the summary judgment stage.
Complaint

is

interference

predicated
with

a

upon

Astro Tel’s operative

Verizon’s

contract.

Astro

alleged

tortious

Tel’s

tortious

interference with a contract claim fails for the simple reason
that it has not proffered or otherwise presented a contract
with an identifiable customer that breached that contract
based on interference by Verizon.

8

The Court will assume that the email was also sent to
the intended recipient, which appears to be an employee of the
Florida Public Service Commission.
26

Without the existence of a contract showing that any
particular

customer

was

committed

to

Astro

Tel

for

a

particular term, Astro Tel’s tortious interference with a
contract claim rings hollow.
The record shows that Verizon sent marketing materials to
some of Astro Tel’s customers.

In addition, the record

reflects that some of Astro Tel’s customers complained about
Verizon, and that some of Astro Tel’s customers terminated
their relationship with Astro Tel.

However, the record does

not show that any specific customer breached its contract with
Astro Tel due to Verizon’s intentional conduct.

See Central

States, 824 So. 2d at 940 (reversing grant of summary judgment
in favor of the plaintiff because “the record does not show
existing or prospective legal or contractual rights” when the
plaintiff “ha[d] not cited to a contract obligating the
patients to pay a professional component fee”).
Even if the Court were to overlook Astro Tel’s failure to
produce a single contract between it and one of its customers
that Verizon intentionally interfered with, the record still
supports the entry of summary judgment in favor of Verizon on
the tortious interference claim.
As noted, Astro Tel theorizes that Verizon intentionally
interfered with its customers by (1) sending estimates or
27

other marketing materials to those customers and (2) failing
to timely install and properly maintain telecommunications
services.
Astro Tel’s evidence that Verizon sent estimates or other
marketing materials to Mr. Ray or other Astro Tel customers
does not support Astro Tel’s tortious interference claim.
Astro Tel has not shown that any of its customers switched to
Verizon on the basis of marketing materials sent by Verizon.
Verizon’s

dissemination

of

marketing

materials

cannot

constitute tortious interference unless it damaged Astro Tel,
and the record is devoid of evidence in support of such damage
to Astro Tel.
Astro Tel’s assertion that Verizon tortiously interfered
with its customer relationships by providing unsatisfactory
services

is

also

unavailing.

The

record

does

contain

references to some faulty customer service by Verizon, and
Verizon admits that, from time to time, it experienced delay
in installing network services for Astro Tel customers or
experienced technical difficulties leading to the temporary
disconnection of services for Astro Tel customers.

Verizon

admits that, in providing services to Astro Tel’s customers,
it was not “perfect.” (Doc. # 94 at 11). In addition, Verizon
concedes that an average of two Astro Tel customers per year
28

cancelled

their

services

after

making

a

complaint

about

Verizon’s provision of telecommunications services. (Doc. # 94
at 11).
This evidence does not satisfy Astro Tel’s burden.

The

evidence Astro Tel identifies does not support the inference
that

Verizon

intentionally

sought

to

damage

Astro

Tel’s

customer relationships. As explained in Hodge v. Orlando
Utilities Commission, 6:09-cv-1059-Orl-19DAB, 2009 U.S. Dist.
LEXIS 77094, at *8 (M.D. Fla. Aug. 28, 2009), “Florida courts
have held that the plaintiff must plead and prove that the
defendant manifested a specific intent to interfere with the
business relationship.”
Astro Tel has proffered no evidence that Verizon intended
for its conduct to cause any customer to terminate Astro Tel’s
services. See Maxi-Taxi of Fla., Inc. v. Lee County Port
Auth., No. 2:07-cv-82-FtM-34SPC, 2008 U.S. Dist. LEXIS 35073,
at *52 (M.D. Fla. Apr. 29, 2008)(summary judgment in favor of
defendant in a tortious interference case when plaintiffs
failed to proffer evidence “as to Defendant’s direct intent to
interfere with [plaintiffs’] business relationships”).
Furthermore, Astro Tel has not established that Verizon’s
alleged conduct of failing to properly install or maintain
certain telecommunications equipment directly interfered with
29

Astro Tel’s relationships with its customers.

Rather, as was

the case in Genron Enterprises v. Metecno Panel Systems, No.
6:05-cv-1765-Orl-31KRS, 2006 U.S. Dist. LEXIS 19867, at *11
(M.D. Fla. Apr. 17, 2006), it appears that Verizon “was
attempting to perform under its [obligation] to Verizon to
provide [telecommunications services], and that [Verizon]
failed to perform as required” in some instances.
Verizon

did

customers

not

does

always
not

follow

“amount

to

through

for

intentional

Astro

That
Tel’s

(tortious)

interferences with the contract or business relationship
between” Astro Tel and its customers. Id.
The record supports that Verizon, from time to time,
failed to install telecommunications services for Astro Tel’s
customers, or experienced technical difficulties in providing
telecommunications services. The record does not support that
Verizon’s

actions

directly

customer

relationships

or

interfered
contracts.

with
Out

Astro

Tel’s

of

40,000

transactions, the existence of a few negative service tickets
showing poor customer service do not support that Verizon
directly and knowingly interfered with Astro Tel’s contractual
and business relationships, causing damage to Astro Tel.
The existence of a mere scintilla of evidence in support
of a non-moving party’s position is insufficient; the test is
30

“whether there is [evidence] upon which a jury could properly
proceed to find a verdict for the party producing it, upon
whom the onus of proof is imposed.” Anderson, 477 U.S. at 252.
The evidence Astro Tel has supplied does not present
evidence upon which a rational trier of fact could find that
Verizon intentionally and directly interfered with Astro Tel’s
contracts

or

customer

relationships

or

that

the

alleged

interference caused damage to Astro Tel.
Summary judgment on Astro Tel’s tortious interference
claim is also warranted on the independent basis that Astro
Tel failed to demonstrate that Verizon is a “stranger” to the
customer relationships. Akzo Nobel Coating, Inc. v. Auto Paint
& Supply of Lakeland, 8:09-cv-2453-T-30TBM, 2010 U.S. Dist.
LEXIS 84544, at *11 (M.D. Fla. July 16, 2010).

In Palm Beach

County Health Care District v. Professional Medical Education,
Inc., 13 So. 3d 1090, 1094 (Fla. 4th DCA 2009), the court
explained: “A defendant is not a ‘stranger’ to a business
relationship if the defendant has any beneficial or economic
interest in, or control over, that relationship.” (internal
citation omitted).
Here, the evidence Astro Tel has submitted shows that
Verizon is deeply entrenched in the very relationships that
Astro Tel asserts Verizon interfered with.
31

Astro Tel has

alleged that it leased portions of Verizon’s network and
resold the network components to Astro Tel’s customers. Astro
Tel requested telephone lines using a Verizon ordering system
and sought “validation” from Verizon for the provision of
services for its customers. (Ray Aff. Doc. 101 at ¶ 7).
Far

from

being

a

“stranger,”

Mr.

Ray

characterized

Verizon’s involvement as “integral” and explained that Verizon
was responsible for procuring, installing, and maintaining the
network for Astro Tel’s customers.

(Id. at ¶ 3).

In such a

relationship, Verizon cannot be held liable for tortious
interference because Verizon has an economic interest in the
relationship – Astro Tel’s business relationships with its
customers are contingent upon Astro Tel’s ability to lease
network components from Verizon in the first instance.
Furthermore, the record supports the finding that Verizon
had some control over Astro Tel’s relationships with its
customers because it was Verizon that installed and maintained
telecommunications

services

for

Astro

Tel’s

customers.

Verizon’s Motion for Summary Judgment is thus granted as to
Astro Tel’s tortious interference claim.
D.

Unfair Competition - Count 6

“To state a claim for unfair competition under Florida
common law a party must plead (1) deceptive or fraudulent
32

conduct

of

a

competitor

and

(2)

likelihood

of

consumer

confusion.” Third Party Verification, Inc. v. Signaturelink,
Inc., 492 F. Supp. 2d 1314, 1324 (M.D. Fla. 2007).

Verizon

asserts that there is no evidence on file to support Astro
Tel’s unfair competition claim. In response to the Motion for
Summary Judgment, Astro Tel has not taken advantage of the
opportunity to present or discuss evidence supporting this
claim.

When faced with a “properly supported motion for

summary judgment,

[the non-moving party] must come forward

with specific factual evidence, presenting more than mere
allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999
(11th Cir. 1997).
The Supreme Court has instructed that summary judgment
should be granted “against a party who fails to make a showing
sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the
burden

of

proof

at

trial.”

Celotex,

477

U.S.

at

322.

Consistent with that directive, the Court grants summary
judgment against Astro Tel on its unsupported claim for unfair
competition.
E.

Business Defamation and Disparagement - Count 7

“The reputation of a corporation can be injured by a
false publication of defamatory matter, which prejudices its
33

trade or business, or deters a third person from dealing with
it.” St. Paul Fire & Marine Ins. Co v. Naples Cmty. Hosp.,
Inc., 585 So. 2d 374, 376 (Fla. 2d DCA 1991) (citing Diplomat
Elec., Inc. v. Westinghouse Elec. Supply Co., 378 F.2d 377,
381 (5th Cir. 1967)).
A derogatory statement is not actionable until it is
published or otherwise disseminated to someone other than the
claimant. As stated in American Airlines, Inc. v. Geddes, 960
So. 2d 830, 833 (Fla. 3d DCA 2007), defamatory statements
“tend

to

subject

someone

to

hatred,

distrust,

ridicule,

contempt or disgrace or tend to injure one in one’s business
or profession.” Such a defamatory statement does not become
actionable, however, “until it is published or communicated to
a third person; statements made to the person alleging the
defamation do not qualify.” Id. (internal citations omitted).
Here, it appears that Astro Tel bases its defamation and
disparagement claim on Verizon’s statement to Mr. Ray that
Astro Tel as a reseller of Verizon’s services.
However, as explained in Advantage Personnel Agency, Inc.
v. Hicks & Grayson, Inc., 447 So. 2d 330, 331 (Fla. 3d DCA
1984) when “the statements complained of are made to a
corporate executive” such as Mr. Ray, “the statements are, in
effect, being made to the management of the corporation and
34

thus to the corporation itself.”

In such a situation, “the

corporation has no cause of action” for defamation because
“the essential element of publication to a third party is
lacking.” Id.

Thus, any statements made to Mr. Ray about

Astro Tel cannot be utilized to satisfy Astro Tel’s burden.
Because Astro Tel has not supported its allegations with
evidence

that

defamatory

Verizon,

statements

or

about

any

of

Astro

its
Tel,

agents,
the

published

Court

grants

Verizon’s Motion for Summary Judgment as to Astro Tel’s
business disparagement and defamation claim.
F.

Civil Conspiracy - Count 8

In Nationwide Mutual Company v. Ft. Myers Total Rehab
Center, Inc., 657 F. Supp. 2d 1279, 1291 (M.D. Fla. 2009) the
court set forth the required elements for civil conspiracy:
“(a) an agreement between two or more parties, (b) to do an
unlawful act or to do a lawful act by unlawful means, (c) the
doing of some overt act in pursuance of the conspiracy, and
(d) damage to plaintiff as a result of the acts done under the
conspiracy.” Id. (citing Charles v. Fla. Foreclosure Placement
Ctr., LLC, 988 So. 2d 1157, 1159-60 (Fla. 3d DCA 2008)).
Astro Tel has not provided the Court with an evidentiary
foundation for any of the elements of its civil conspiracy
claim.

In response to the Motion for Summary Judgment, Astro
35

Tel asserts: “It also has been shown via recordings, recording
transcripts,

and

misrepresented

documentation

having

knowledge

that

Verizon

of

purposefully

complaint

or

repair

tickets, thus showing a conspiracy between Defendants and its
representatives
confusing

and

or

agents.”

conclusory

(Doc.

statement

#

100

does

at
not

17).
address

This
the

required elements for establishing a civil conspiracy claim,
nor does it point to an evidentiary basis for such a claim.9
The Court is under no obligation to plumb the record in
search of evidence which may be favorable to Astro Tel.

“It

is the obligation of the non-moving party . . . not the Court,
to scour the record in search of the evidence that would
defeat a motion for summary judgment.” Lawrence v. Wal-Mart
Stores, Inc., 236 F. Supp. 2d 1314, 1322 (M.D. Fla. 2002).

9

Astro Tel references “Ray Aff. (Ex. 5, FC-22, FC-28)” in
this section of its response to Verizon’s Motion for Summary
Judgment.
These documents do not save Astro Tel’s civil
conspiracy claim. Mr. Ray’s affidavit does not evidence any
agreement between Verizon and another entity to participate in
an unlawful purpose nor does it provide an evidentiary basis
for the other required elements for stating a civil conspiracy
claim. Likewise, the documents labeled FC-22 and FC-28 are
two of Astro Tel’s service tickets, which purport to show that
in February of 2010, and January of 2011, Verizon failed to
timely install ordered services for Astro Tel customers.
Astro Tel leaves this Court guessing as to how Verizon’s
allegedly deficient provision of telecommunications services
to Astro Tel’s customers gives rise to a civil conspiracy
claim.
36

The Court grants the Motion for Summary Judgment as to Astro
Tel’s civil conspiracy claim.
IV.

Conclusion
A party opposing summary judgment must “show specific

facts exist that raise a genuine issue for trial.” Dietz v.
SmithKline Beecham Corp., 598 F.3d 812, 815 (11th Cir. 2010).
“Mere conclusions and unsupported factual allegations are
legally insufficient to create a dispute to defeat summary
judgment.” Bald Mountain Park, Ltd. Oliver, 863 F.2d 1560,
1563 (11th Cir. 1989).

And “[w]here the record taken as a

whole could not lead a rational trier of fact to find for the
nonmoving

party,

there

is

no

genuine

issue

for

trial.”

Saltzman v. Bd. of Comm’rs of the N. Broward Hosp. Dist., 239
F. App’x 484, 487 (11th Cir 2007).
Verizon is entitled to summary judgment because it has
negated essential elements of Astro Tel’s claims and shown
that there is no evidence upon which Astro Tel may rely to
prove the facts necessary to prevail on its claims.

Astro

Tel, confronted with Verizon’s properly supported Motion for
Summary Judgment, has not met its burden because it has not
shown that specific facts exist that raise a genuine issue for
trial and has not supported its conclusional allegations with
an evidentiary foundation.

For this reason, and for the
37

reasons articulated above, the Court grants Verizon’s Motion
for Summary Judgment.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendants

Verizon

Florida,

LLC

and

Verizon

Communications, Inc.’s Sealed Motion for Final Summary
Judgment (Doc. # 94) is GRANTED.
(2)

The Clerk is directed to enter Judgment in favor of
Defendants

Verizon

Florida,

LLC

and

Verizon

Communications, Inc. and thereafter to CLOSE THE CASE.
DONE and ORDERED in Chambers in Tampa, Florida, this 25th
day of October, 2013.

Copies:

All Counsel of Record

38