Adams Arms, LLC v. Unified Weapon Systems, Inc. et al

Filing 164

ORDER: Adams Arms, LLC's Motion to Dismiss or Strike Unified Weapons Systems, Inc.'s First Amended Counterclaim (Doc. #119 ) is DENIED. Adams Arms' Motion to Dismiss Aguieus, LLC's Counterclaim (Doc. #123 ) is GRANTED IN PART to the extent that Aguieus' Counterclaim for breach of the Letter of Intent is dismissed with leave to amend by February 21, 2017. The Motion is otherwise DENIED. Signed by Judge Virginia M. Hernandez Covington on 2/8/2017. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ADAMS ARMS, LLC,
Plaintiff,
v.

Case No. 8:16-cv-1503-T-33AEP

UNIFIED WEAPON SYSTEMS, INC.
et al.,
Defendants.
______________________________/
ORDER
This cause is before the Court pursuant to Adams Arms,
LLC’s Motion to Dismiss or Strike Unified Weapon Systems,
Inc.’s First Amended Counterclaim (Doc. # 119), which was
filed on October 28, 2016.

On November 18, 2016, Unified

Weapon Systems, Inc. (“UWSI”) filed a Response in Opposition
to the Motion. (Doc. # 128).

Also before the Court is Adams’

Motion to Dismiss Aguieus, LLC’s Counterclaim (Doc. # 123),
which was filed on November 2, 2016. Aguieus filed a Response
to the Motion on November 28, 2016. (Doc. # 131).
As explained below, the Court denies Adams’ Motion to
Dismiss UWSI’s Counterclaims. The Court grants in part Adams’
Motion to Dismiss Aguieus’ Counterclaims to the extent that
Aguieus’ Counterclaim for breach of the Letter of Intent is
dismissed

without

February 21, 2017.

prejudice

and

with

leave

to

amend

by

I.

Facts
A. The Parties
Adams

is

a

Tampa,

Florida,

weapons

manufacturer

specializing in “small arms, including high-powered military
rifles.” (Doc. # 106 at ¶ 1).

UWSI is a Delaware corporation

with its principal place of business in Florida. (Id. at ¶
11).

UWSI is alleged to be a subsidiary of Aguieus. (Doc. #

106 at ¶ 11).

Aguieus is a Delaware limited liability

corporation. (Id. at ¶ 12).

Michael Bingham claims to be the

managing member of Aguieus and the Vice President and Chief
Operating

Officer

of

UWSI.

(Id.

at

¶

13).1

Christian

Quintanilla Aurich, an individual who resides in Peru, is the
President and Chief Executive Officer of UWSI. (Doc. # 106 at
¶ 14).

General James W. Parker, a resident of Hillsborough

County, is a retired Major General from the United States Army

1

On January 20, 2017, UWSI and Aurich filed an elevencount Cross-claim against Aguieus and Bingham, alleging, inter
alia, that Bingham falsely represented that he was the true
owner of UWSI and containing the following counts: Fla. Stat.
§ 495.151 (Count One); common law trade name & trademark
infringement (Count Two); Fla. Stat. § 495.131 (Count Three);
tortious interference (Count Four); Lanham Act (Count Five);
Fla. Stat. § 501.204 (Count Six); common law indemnity (Counts
Seven and Eight); breach of fiduciary duty (Count Nine); fraud
(Count Ten); and the wrongful act doctrine (Count Eleven).
(Doc. # 149).
The filing of the Cross-claim calls into
question the relationship between the Defendants. Aguieus and
Bingham are not currently represented by counsel and have not
yet responded to the Cross-claim.
2

and serves as a Director and advisor for UWSI. (Id. at ¶ 15).
B.

The Letter of Intent and Nondisclosure Agreements

In early 2014, Aguieus approached Adams with a proposal
for the two companies to work together on a bid to supply
high-powered military rifles designed and built by Adams to
the Peruvian military. (Id. at ¶ 18).

According to Bingham,

the Ministry of Defense of the Republic of Peru (the “Peruvian
MOD”) contacted UWSI concerning the opportunity to secure a
multi-year contract for the supply of rifles. (Id. ¶ 19).
“The Peruvian MOD was purportedly funding the purchase through
the Peruvian Factory of Weapons and Ammunition from the Army
S.A.C. (‘FAME’).” (Id.).

The rifles would be constructed

based on the Peruvian MOD’s specifications “with input by UWSI
and its business partners.” (Id. ¶ 20).
“Aguieus

and

UWSI,

through

Mr.

Adams alleges that

Bingham

and

Mr.

Aurich,

solicited [Adams] to be a business partner in the project.”
(Id.). The project would require Adams to provide UWSI with
products, such as demonstration rifles, to disclose trade
secrets and confidential information, and allow a tour of
Adams’ manufacturing facility. (Id. at ¶ 21).
On February 24, 2014, as an “inducement” for Adams to
join the project, Aurich and Bingham, on behalf of Aguieus,
executed

a

“Mutual

Confidentiality
3

and

Nondisclosure

Agreement” with Adams “in which Aguieus agreed not to use
[Adams’]

confidential

information,

including

[Adams’]

technical data, trade secrets, and know-how, for its own use
or for any purpose other than the commercial relationship
between [Adams] and Aguieus.” (Id. at ¶ 22).2

The Mutual

Confidentiality and Nondisclosure Agreement allowed Aguieus to
share Adams’ confidential information with others, such as
UWSI, so long as they “acknowledged and agreed to be bound by
the [Mutual Confidentiality and Nondisclosure Agreement].”
(Id.).
Thereafter, on April 29, 2014, Bingham sent Adams a sixpage Letter of Intent, which UWSI and Adams executed. (Id. at
¶ 23). The Letter of Intent describes the “mutual intentions”
between “Unified Weapon Systems (‘Buyer’) and Adams Arms
(‘Seller’).”

(Doc.

#

117-3

at

1)(emphasis

in

original).

“After signing the [Letter of Intent], on or about June 25,
2014, Mr. Bingham represented to [Adams] that there would be
an immediate order for 3,000 units for use by the Peruvian
MOD.” (Doc. # 106 at ¶ 32).
During

that

time,

General

2

Parker

met

with

Adams’

There
are
at
least
two
Adams
Arms
Mutual
Confidentiality and Nondisclosure Agreements on file dated
February 24, 2014. One is executed by Aurich (Doc. # 106-1 at
4) and the other is executed by Bingham. (Doc. # 106-2 at 4).
Both of these Agreements name “Aguieus” as the “Receiving
Party.” (Id.). General Parker signed a different version of
the agreement on June 24, 2014. (Doc. # 106-4 at 8).
4

President and CEO, Michael Froning, “and represented to Mr.
Froning that General Parker possessed significant expertise
and knowledge regarding foreign and domestic military matters,
which would be helpful to [Adams] in negotiating the rifle
contract with UWS[I].” (Id. at ¶ 33). According to Adams,
General Parker failed to disclose that he was a Director and
advisor for UWSI and “when Mr. Froning asked General Parker
whether he had any conflicts of interest or ties with UWS[I]
that would prevent him from being loyal to [Adams], General
Parker misrepresented to Mr. Froning that he had no ties to
UWS[I].” (Id. at ¶ 34).
In furtherance of General Parker’s efforts to gain access
to Adams’ trade secrets, on June 24, 2014, General Parker
executed a separate confidentiality agreement vowing to hold
Adams’ confidential information and trade secrets “in strict
confidence”

and

agreeing

“not

to

use

any

Confidential

Information for any purpose other than the Business Purpose.”
(Doc.

#

106-4

Consulting

at

Services

3).

General

Agreement

on

Parker
July

also
7,

executed

2014,

a

further

agreeing to keep Adams’ proprietary information confidential
and to only use such information in connection with providing
services on behalf of Adams. (Doc. # 106-5).
C.

Adams Divulges Trade Secrets

Adams “has spent a number of years and endless resources”
5

developing

“numerous

trade

secrets

that

are

crucial

and

extremely valuable to its business.” (Doc. # 106 at ¶¶ 29-30).
Adams explains that it “exerts great efforts to ensure that
its trade secrets remain confidential,” such as requiring
employees and third parties to sign nondisclosure agreements,
maintaining security cameras at its facilities, and requiring
badges for entry into its facilities. (Id. at ¶ 30).
Nonetheless,

and

in

reliance

on

the

Mutual

Confidentiality and Nondisclosure Agreements, General Parker’s
confidentiality agreement, the Letter of Intent, and other
assurances,

Adams

disclosed

its

trade

secrets

Aguieus, Bingham, Aurich, and General Parker.

to

UWSI,

(Id. at ¶ 28).

After the parties formalized their agreements and Adams
disclosed its trade secrets, the rifle project began in
earnest. Between August of 2014, and February of 2015, Adams
manufactured demonstration rifles for examination and testing
by UWSI and the Peruvian MOD.

(Id. at ¶¶ 38-44).

On October

13, 2014, UWSI sent Adams a 2.1 million dollar purchase order
for rifles. (Id. at ¶ 39).
On February 8 and 9, 2015, representatives of
[Adams] attended the demonstration of [Adams’]
rifles
to
the
Peruvian
MOD.
During
the
demonstration, UWSI leveraged [Adams’] brand name
and weapons-making experience, identifying [Adams]
as one of its lead partners, and UWSI used [Adams’]
trademarks to market the rifles to the Peruvian
MOD. To [Adams’] knowledge, UWSI has no ability to
6

design or manufacture any rifles. Instead, it was
marketing [Adams’] rifles to the customer.
(Id. at ¶ 44). According to Adams, the demonstration was a
success, and “all parties approved moving forward with the
joint venture with [Adams] as the manufacturer.” (Id. at ¶
45).
Between April of 2015, and September of 2015, Bingham
requested

supplier

pricing

information

for

the

components of Adams’ rifles, which Adams provided.
46).

Bingham

also

requested

information

separate
(Id. at ¶

about

Adams’

manufacturing facility and equipment, and Adams allowed tours
of its facility in Florida during which Adams revealed stepby-step details of its manufacturing processes, machinery, and
tooling.

(Id. at ¶¶ 46-48).

Following the meetings in Florida, Bingham requested
additional confidential and proprietary information, which he
represented was necessary to secure the contract with FAME.
(Id. at ¶ 50).

This information included photographs of

Adams’ facility, assembly work stations, and tool boxes; a
complete list of parts, parts configurations, parts suppliers,
and prices; a list of all tooling needed for assembly of
Adams’ rifles; a breakdown of the rifle configuration; and
proprietary details of Adams’ technician training program.
(Id.).

7

On September 25, 2015, Bingham represented to Adams that
all submissions to FAME were completed on time “thanks to
[Adams].”

(Id. at ¶ 52).

On November 19, 2015, FAME issued

its bid solicitation for the rifles.
December

10,

response

to

2015,
the

UWSI

bid

submitted

solicitation

procedures, and specifications.

(Id. at ¶ 53).
a

On

qualified

in

using

offer

Adams’

(Id. at ¶ 55).

designs,

On December

18, 2015, FAME announced UWSI as the winning bidder.

(Id. at

¶ 58).
D.

Squeeze-Out of Adams

After UWSI obtained the winning bid, UWSI “began taking
steps

to

squeeze

contract[.]”

[Adams]

(Id. at ¶ 61).

out

of

the

final

purchase

UWSI and Bingham refused Adams’

requests for documents and meetings, although UWSI and Bingham
“continued to seek guidance and input” from Adams about the
design of the rifles.

(Id. at ¶¶ 62-64).

On December 30,

2015, Aurich advised Adams that UWSI would take the entire
project over now that UWSI had all of Adams’ technical and
pricing data.

(Id. at ¶ 65).

In the months that followed,

Adams was excluded from multiple meetings with FAME, including
another meeting in Peru to test Adams’ rifles before final
contract execution.
II.

(Id. at ¶ 66).

Procedural History and Amended Counterclaims
A.

Adams Sets the Stage

8

Adams initiated this action on June 10, 2016, by filing
the Complaint. (Doc. # 1).

At this juncture, the Complaint

has been amended and contains the following counts: breach of
Letter of Intent against UWSI (Count One); breach of Mutual
Confidentiality

and

Nondisclosure

Agreement

against

all

Defendants (Count Two); breach of Confidentiality Agreement
against General Parker (Count Three); breach of the Consulting
Services

Agreement

as

to

General

Parker

(Count

Four);

misappropriation under the Defend Trade Secrets Act as to all
Defendants (Count Five); misappropriation under the Florida
Trade Secrets Act against all Defendants (Count Six); unfair
competition under the Lanham Act against UWSI (Count Seven);
unjust enrichment against UWSI and Aguieus (Count Eight);
specific

performance

of

the

Mutual

Confidentiality

and

Nondisclosure Agreement as to Aguieus and UWSI (Count Nine);
and replevin (Count Ten). (Doc. # 106).
On July 13, 2016, UWSI filed its Motion to Dismiss Counts
One, Two and Five of Adams’ original Complaint (Doc. # 49), as
well as its Answer, Affirmative Defenses, and a tortious
interference Counterclaim against Adams. (Doc. # 52). Aurich
likewise filed a Motion to Dismiss Counts Two and Five of
Adams’ original Complaint (Doc. # 50) along with his Answer
and Affirmative Defenses on July 13, 2016. (Doc. # 51).
Thereafter, on August 2, 2016, Adams filed a Motion to Dismiss

9

UWSI’s tortious interference Counterclaim. (Doc. # 81).
On September 27, 2016, the Court entered a detailed Order
denying

all

of

the

then-pending

Motions.

(Doc.

#

94).

Thereafter, on October 12, 2016, Adams filed a Motion to Amend
the Complaint, which the Court granted. (Doc. ## 104, 105).
Adams’ Amended Complaint was filed on October 13, 2016. (Doc.
# 106).
Motion

One day later, on October 14, 2016, UWSI filed a
to

Amend

its

Counterclaim,

which

the

Court

also

granted. (Doc. ## 107, 108).
B.

UWSI and Aguieus Lodge Counterclaims

UWSI filed its Amended Counterclaim on October 17, 2016.
(Doc. # 109). UWSI’s Amended Counterclaim seeks relief against
Adams for tortious interference (Count One), breach of the
Letter

of

Intent

(Count

Two),

breach

of

the

Mutual

Confidentiality and Nondisclosure Agreement (Count Three), and
unjust enrichment (Count Four).

In support of these claims,

UWSI maintains that Adams’ untimely provision of ultimately
defective

rifles

cost

UWSI

the

Peruvian MOD. (Id. at ¶¶ 13-17).

lucrative

deal

with

the

When Adams did produce

rifles, UWSI alleges that such rifles “did not function
properly.” (Id. at ¶ 17).

According to UWSI, the rifles

“jammed” and a demonstration held on February 12, 2015, “was
an embarrassment and a total failure.” (Id. at ¶ 18). “In the
months following the failed demonstration, UWSI’s frustration

10

grew

because

Adams

failed

to

produce

functioning

Rifles

despite having over a year to do so.” (Id. at ¶ 20).
Despite losing the MOD deal, UWSI claims that it gave
Adams another chance with respect to securing a deal with
FAME. UWSI indicates that it “conducted ammunition testing for
FAME at Adams’ facility” successfully. (Id. at ¶ 24).

UWSI

maintains that, using its own “ingenuity,” it conducted a
successful rifle demonstration with the Peruvian Police in
November of 2015. (Id. at ¶ 25). Thereafter, “FAME selected
UWSI to co-manufacture the Rifles.” (Id. at ¶ 27).
However,
reconfigured

according
with

to

“numerous

UWSI,

the

rifles

modifications”

to

had

to

meet

be
the

exacting bid specifications. (Id. at ¶¶ 28-30). UWSI explains
that, as originally configured, the rifles “failed 70% of the
time.” (Id. at ¶ 28).

“On January 13, 2015, UWSI and Adams

put the Rifles through FAME testing protocol and the Rifles
failed

again.

After

several

testing

failures,

Adams’

representatives abandoned UWSI and the prototype Rifles.” (Id.
at ¶ 29).

UWSI explains that its relationship with Adams

completely deteriorated and UWSI found alternative vendors to
provide the rifle parts, as such, the UWSI “Rifles that are in
FAME’s possession have no Adams parts in them.” (Id. at ¶
33)(emphasis in original).
Adams voiced its concerns to FAME officials in an email

11

dated May 6, 2016, asserting that the rifles subject to the
bid employed technology belonging to Adams and threatening
litigation. (Id. at ¶¶ 36-41). On May 16, 2016, UWSI and FAME
entered

into

a

written

agreement

(the

“FAME

Agreement”)

specifying that FAME and UWSI agreed to manufacture the rifles
in FAME’s facilities in Peru. (Id. at ¶¶ 34-35).
UWSI asserts that the email from Adams to FAME was
written “with the specific and malicious intent of interfering
with UWSI’s agreement and ongoing relationship with FAME and
[to] disrupt the same.” (Id. at ¶ 40). UWSI claims that after
FAME

received

purchase

Adams’

orders

for

email,
the

FAME

rifles.”

“refused
(Id.

at

to
¶

issue
50).

any
UWSI

indicates that Adams knew about the agreement between UWSI and
FAME and issued the threatening email in an effort to harm
that relationship. (Id. at ¶¶ 47-48). UWSI claims that it has
lost millions, if not billions, of dollars due to Adams’
interference. (Id. at ¶ 39).
Adams

misappropriated

In addition, UWSI claims that

confidential

information

including

“UWSI’s product plans, designs, and hardware configuration” to
launch Adams’ Small Frame .308 Rifle (aka the Patrol Rifle).
(Id. at ¶¶ 62, 63).
Likewise,

on

October

27,

2016,

Aguieus

filed

its

Counterclaim against Adams containing allegations akin to
those

presented

in

UWSI’s

Counterclaim

12

and

bringing

the

following

claims

Confidentiality

against

and

Adams:

Nondisclosure

breach

of

Agreement

the
(Count

Mutual
One);

unjust enrichment (Count Two); and breach of the Letter of
Intent (Count Three). (Doc. # 117).
At this point, Adams has filed two Motions that seek
dismissal of the Counterclaims pursuant to Rule 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure. (Doc. ##
119, 123).

Adams also asserts that certain passages in the

Counterclaims are subject to being stricken pursuant to Rule
12(f), Fed. R. Civ. P. (Id.).

Now that UWSI and Aguieus have

responded to the Motions, and the Motions are ripe for the
Court’s review. (Doc. ## 128, 131).
III. Legal Standard
A.

Rule 12(b)(1) Motion to Dismiss

Federal

courts

are

courts

of

limited

jurisdiction.

“[B]ecause a federal court is powerless to act beyond its
statutory grant of subject matter jurisdiction, a court must
zealously insure that jurisdiction exists over a case, and
should

itself

raise

the

question

of

subject

matter

jurisdiction at any point in the litigation where a doubt
about jurisdiction arises.” Smith v. GTE Corp., 236 F.3d 1292,
1299 (11th Cir. 2001).
Motions

to

dismiss

for

lack

of

subject

matter

jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) may attack
13

jurisdiction facially or factually.

Morrison v. Amway Corp.,

323

Cir.

F.3d

920,

924

n.5

(11th

2003).

When

the

jurisdictional attack is factual, the Court may look outside
the four corners of the complaint to determine if jurisdiction
exists.

Eaton v. Dorchester Dev., Inc., 692 F.2d 727, 732

(11th Cir. 1982).

In a factual attack, the presumption of

truthfulness afforded to a plaintiff under Rule 12(b)(6) does
not attach. Scarfo v. Ginsberg, 175 F.3d 957, 960 (11th Cir.
1999)(citing Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th
Cir. 1990)). Because the very power of the Court to hear the
case is at issue in a Rule 12(b)(1) motion, the Court is free
to weigh evidence outside the complaint.

Eaton, 692 F.2d at

732.
B.

Rule 12(b)(6) Motion to Dismiss

A motion to dismiss a counterclaim under Rule 12(b)(6) of
the Federal Rules of Civil Procedure is evaluated in the same
manner as a motion to dismiss a complaint.

Stewart Title

Guar. Co. v. Title Dynamics, Inc., No. 2:04-cv-316-FtM-33SPC,
2005

WL

2548419,

at

*1

(M.D.

Fla.

Oct.

11,

2005).

A

counterclaim must contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
R. Civ. P. 8(a)(2).

Fed.

In deciding a motion to dismiss pursuant

to Rule 12(b)(6), a court must accept all factual allegations
in the counterclaim as true and construe them in the light

14

most favorable to the counterclaim plaintiff.

See United

Techs. Corp. v. Mazer, 556 F.3d 1260, 1269 (11th Cir. 2009).
“While a [counterclaim] attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations,
. . . a plaintiff's obligation to provide the grounds of his
entitlement

to

relief

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) (internal citations and quotations marks
omitted).

“Factual allegations must be enough to raise a

right to relief above the speculative level on the assumption
that all the allegations in the complaint are true.”

Id.

(internal citations omitted).
A counterclaim plaintiff must plead enough facts to state
a plausible basis for the claim.

Id.; James River Ins. Co. v.

Ground Down Eng'g, Inc., 540 F.3d 1270, 1274 (11th Cir. 2008)
(“To survive dismissal, the [counterclaim's] allegations must
plausibly suggest that the plaintiff has a right to relief,
raising that possibility above a speculative level; if they do
not, the plaintiff's [counterclaim] should be dismissed.”).
Additionally, “the tenet that a court must accept as true all
of

the

allegations

contained

in

a

[counterclaim]

is

inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory

15

statements, do not suffice.” Ashcroft v. Iqbal, 566 U.S. 662,
678 (2009).
C.

Rule 12(f) Motion to Strike

Pursuant to Rule 12(f), Fed. R. Civ. P., a “court may
strike

from

a

pleading

an

insufficient

defense

or

any

redundant, immaterial, impertinent, or scandalous matter." In
addition, courts are at liberty to strike material that bears
“no possible relation to the controversy, may confuse the
issues, or may cause prejudice to one of the parties.” Ayers
v. Consol. Constr. Servs. of Sw. Fla., Inc., No. 2:07-cv-123,
2007 U.S. Dist. LEXIS 86596, at *2 (M.D. Fla. Nov. 26, 2007).
Although the Court has broad discretion in ruling on a motion
to strike, such motions are disfavored due to their “drastic
nature.”

Royal Ins. Co. of Am. v. M/Y Anastasia, No. 95-cv-

30498, 1997 U.S. Dist. LEXIS 15595, at *10 (N.D. Fla. Jan. 30,
1997).
IV.

Analysis
A.

UWSI’s Tortious Interference Counterclaim

As noted, the Complaint and the Counterclaims have been
amended.

Before the amendments, UWSI’s original Counterclaim

against Adams sought relief for tortious interference based on
Adams’ email to FAME, as well as Adams’ initiation of the
present lawsuit. (Doc. # 52). Adams filed a motion to dismiss
the tortious interference Counterclaim. (Doc. # 81).
16

The

Court carefully analyzed the Counterclaim and determined that
UWSI

adequately

pled

a

claim

for

relief

interference based on the email. (Doc. # 94).

for

tortious

However, the

Court found that the filing of the present lawsuit could not
form a basis for a tortious interference claim based on
Florida’s litigation privilege: “It cannot be disputed that
Adams Arms’ initiation of this suit . . . is not actionable as
tortious interference.” (Id. at 24-25).

Specifically, the

Court determined:
“To prove tortious interference, Plaintiff
must show: (1) the existence of a contract or
business relationship not necessarily evidenced by
an enforceable contract under which [the plaintiff]
has rights; (2) defendants’ knowledge of the
relationship; (3) an intentional and unjustified
interference with the relationship by defendants;
and (4) damage as a result of the interference.”
Mobile Shelter Sys. USA, Inc. v. Grate Pallet
Sols., LLC, 845 F. Supp. 2d 1241, 1258 (M.D. Fla.
2012).
A tortious interference claim will fail absent
“a business relationship evidenced by an actual and
identifiable understanding or agreement which in
all probability would have been completed if the
defendant had not interfered.” Ethan Allen, Inc. v.
Georgetown Manor, Inc., 647 So. 2d 812, 815 (Fla.
1994). Florida law also requires actual harm to a
business relationship, as opposed to merely a
suspicion
or
unsupported
and
speculative
supposition of harm. Realauction.com, LLC v. Grant
St. Grp., Inc., 82 So. 3d 1056, 1058 (Fla. DCA
2011).
Here, the counterclaim sufficiently alleges
each required element.
UWS[I] claims that a
business relationship existed between FAME and
UWS[I] that afforded UWS[I] with existing or
prospective legal rights, that Adams Arms was aware
of that relationship, and that Adams Arms
intentionally interfered with the relationship
17

without justification, causing harm to UWS[I].
Specifically, UWS[I] claims that Adams Arms sent a
defamatory and threatening email to FAME “just as
UWS[I] and FAME were getting ready to ink the deal”
and that the email caused damage to UWS[I]. (Doc. #
90 at 3-4). UWS[I] claims that due to the email
from Adams Arms, FAME refused to issue any purchase
orders, effectively depriving UWS[I] of its
expected monetary benefits under the contract.
At this juncture, these allegations are
sufficient to withstand Adams Arms’ Motion to
Dismiss.
(Doc. # 94 at 22-23).
UWSI has not altered the substance of its tortious
interference Counterclaim since the entry of the Court’s
September

27,

2016,

Order.

Adams

does

not

ask

for

reconsideration of the Court’s prior Order, which upheld the
sufficiency of UWSI’s tortious interference Counterclaim.
Instead, Adams requests that the Court strike UWSI’s reference
to Adams’ filing of this lawsuit as a basis for tortious
interference. Although the Court has ruled that the filing of
the present lawsuit does not constitute an act of tortious
interference by Adams, the Court sees no reason to strike all
reference

to

the

filing

of

the

lawsuit

from

UWSI’s

Counterclaim.
UWSI’s reference to the filing of the lawsuit is not
“redundant, immaterial, impertinent, or scandalous." 12(f),
Fed. R. Civ. P.

In addition, UWSI’s allegations regarding

Adams’ act of initiating the lawsuit by filing the initial
Complaint are not subject to being stricken as confusing,
18

prejudicial, or baseless. The factual allegations regarding
the filing of the lawsuit provide a temporal context for the
complex chain of events in question. Adams’ Motion to Strike
is accordingly denied with respect to UWSI’s Counterclaim for
tortious

interference

and

specifically

with

allegations regarding the filing of the lawsuit.

respect

to

The Court

reiterates its finding that the filing of the present lawsuit
is not an appropriate basis for a tortious interference claim.
The Court is allowing UWSI to include in its Counterclaim some
allegations regarding the filing of the Complaint merely to
provide background information and temporal orientation.
B.

UWSI and Aguieus’ Unjust Enrichment Counterclaims

The elements of an unjust enrichment claim are “(1) the
plaintiff conferred a benefit on the defendant, who had
knowledge

of

accepted

and

the

benefit,

retained

the

(2)

the

defendant

benefit,

and

(3)

voluntarily
under

the

circumstances it would be inequitable for the defendant to
retain the benefit without paying for it.” My Classified Ads,
L.L.C. v. Greg Welteroth Holding, Inc., No. 8:14-cv-2365-T33AEP, 2015 U.S. Dist. LEXIS 31180, at *9 (M.D. Fla. Mar. 13,
2015).
UWSI and Aguieus have alleged each element and satisfy
the burden imposed by Rule 12(b)(6).

Specifically, UWSI and

Aguieus claim that Adams used UWSI and Aguieus’ confidential

19

information to launch a rifle, Adams’ Patrol Rifle, for which
Adams will receive financial gain; that Adams voluntarily
accepted

and

retained

the

benefit

of

the

confidential

information; and that Adams has been enriched at the expense
of UWSI and Aguieus. UWSI and Aguieus also allege that the
circumstances are such that it would be inequitable for Adams
to retain the benefit of the confidential information without
paying for it. See (Doc. # 109 at ¶¶ 67-70; Doc. # 117 at ¶¶
28-31).

Although UWSI and Aguieus have provided a concise

outline of their respective unjust enrichment Counterclaims,
Adams seeks dismissal because these claims lack “requite [sic]
particularity.” (Doc. # 119 at 14; Doc. # 123 at 5).
The Court denies the Motion because the Counterclaims are
more than sufficient to place Adams on notice of the conduct
in question.

In fact, Adams, in presenting its Motions to

Dismiss, was able to succinctly distill the unjust enrichment
Counterclaims as follows: “AA breached the nondisclosure
agreement and was unjustly enriched when it utilized [the]
confidential information for AA’s own commercial gain in
bringing a new product to market (a .308 [Patrol] rifle), a
different product from those discussed in the letter of intent
(a 5.56 and a 7.62 rifle).” (Doc. # 119 at 14; Doc. # 123 at
5). As such, the Court denies the Motions to Dismiss to the
extent they are aimed at the unjust enrichment Counterclaims.

20

C.

UWSI and Aguieus’ Breach of Contract Counterclaims
1.

Standing

Adams seeks an order dismissing Counts Two (breach of
Letter of Intent) and Three (breach of Mutual Confidentiality
and Nondisclosure Agreement) of UWSI’s Counterclaim for lack
of subject matter jurisdiction pursuant to Rule 12(b)(1), Fed.
R. Civ. P. However, rather than claiming that the Court lacks
subject

matter

jurisdiction

over

UWSI’s

relevant

Counterclaims, Adams argues that UWSI does not have standing
to sue Adams for breach of the Letter of Intent and of the
Mutual Confidentiality and Nondisclosure Agreement.

Adams

also contends that Aguieus lacks standing to sue for a breach
of the Letter of Intent because it is not a party to that
contract.
Just as it was necessary to draw upon the Court’s prior
Order to address Adams’ Motion to Dismiss UWSI’s tortious
interference Counterclaim, the Court must once again look back
to the prior Order to assess whether it is appropriate to
dismiss any breach of contract Counterclaims.

Previously,

UWSI sought dismissal of Adams’ breach of contract claim by
arguing that UWSI was not a party to the contract.
however, denied UWSI’s motion to dismiss.

The Court

Based on the

Court’s ruling, UWSI sought leave to amend its Counterclaim to
add a claim for breach of contract.
21

As explained by UWSI:

UWSI amended its Counterclaim to add counts for
breach of the LOI and NDA in the event this Court
ultimately finds that UWSI is a party to those
agreements, as pled and argued by Adams and given
this Court’s rejection of UWSI’s argument to the
contrary in its motion to dismiss. . . . If UWSI is
held to be
a party, then it certainly has the
right to bring its own claims under those
agreements. . . . Adams cannot have it both ways.
It cannot claim that UWSI is a party for purposes
of Adams’ claims against UWSI, but not a party for
purposes of UWSI’s counterclaims against Adams.
(Doc. # 128 at 10-11)(emphasis in original).

Adams’ subject

matter jurisdiction and standing arguments miss the mark to
the extent such arguments are focused on UWSI.

Adams has

taken the position that Adams and UWSI are parties to various
contracts and that UWSI breached those contracts in myriad
ways.

UWSI contends that, if it is a party to the contracts,

it was Adams that breached the contracts, not UWSI. Surely if
the Court has subject matter jurisdiction over Adams’ breach
of contract claims with UWSI as a Defendant, the Court has
subject matter jurisdiction over UWSI’s Counterclaims with
Adams as a Counterclaim Defendant.
The same cannot be said for Aguieus, however, in regards
to the Letter of Intent.3

Adams correctly points out that

3

In contrast, Aguieus does specifically allege that it
is a contracting party to the Mutual Confidentiality and
Nondisclosure Agreement. (Doc. # 117 at ¶ 21). At the Motion
to Dismiss stage, the Court accepts this allegation as true.
Furthermore, Aguieus attaches an executed copy of the Mutual
Confidentiality
and
Nondisclosure
Agreement
to
the
Counterclaim and Aguieus is named as the “Receiving Party” on
the executed Agreement. (Doc. # 117-2 at 4).
22

Aguieus never alleged in its Counterclaim that it is a party
to the Letter of Intent.

And, Adams sued UWSI for breach of

the Letter of Intent, not Aguieus.

The Letter of Intent

states that UWSI is partially owned by Aguieus, but the Letter
of Intent does not reflect that Aguieus is a contracting
party.

Rather, the Letter of Intent is “between Unified

Weapon Systems (‘Buyer’) and Adams Arms (‘Seller’).” (Doc. #
117-3 at 1)(emphasis in original).

Aguieus alleges in Count

Three:
On April 29, 2014, [Adams] executed and delivered a
LOI. Pursuant to the LOI, [Adams] was to deliver
three orders of the Rifles on or before September
1, 2014. [Adams] failed to timely deliver the
Rifles as required by the LOI. [Adams] failed to
deliver a single prototype . . . by September 1,
2014. As a direct result of [Adams’] failure to
timely deliver the Rifles, the opportunity to
secure a contract with the MOD for the MOD Project
was lost. [Adams] materially breached the LOI by
failing to deliver the Rifles before September 1,
2014, and damage has been caused by [Adams’] breach
of the LOI.
(Doc. # 117 at ¶¶ 32-37).

These allegations do not support

Augieus’ claim against Adams for breach of the Letter of
Intent because Aguieus never alleged that it is a party to the
contract or that it is otherwise in privity. “It is hornbook
law that privity of contract ‘is essential to the maintenance
of an action on any contract.’” Katchmore Luhrs, LLC v.
Allianz Global Corp. & Speciality, No. 15-cv-23420, 2017 U.S.
Dist. LEXIS 13778, at *14 (S.D. Fla. Jan. 31, 2017) (citing

23

Sumitomo Corp. of Am. v. M/V Saint Venture, 683 F. Supp. 1361,
1369 (M.D. Fla. 1988)). In addition, “[g]enerally, a contract
does not bind one who is not a party to the contract” and
“[u]nder

Florida

law,

corporations

are

separate

legal

entities, and contracts made by a parent corporation do not
bind a subsidiary.” Whetstone Candy Co., Inc. v. Kraft Foods,
Inc., 351 F.3d 1067, 1072-74 (11th Cir. 2003).

The Court

accordingly grants Adams’ Motion to Dismiss to the extent that
Motion targets Count Three of Aguieus’ Counterclaim, for
breach of the Letter of Intent.

However, the Court grants

Aguieus the opportunity to amend its Counterclaim in light of
the

recent

filing

of

the

Cross-claim,

which

effectively

shuffles the deck regarding corporate identities, ownership,
and alliances in this case.

Any amendment to Aguieus’

Counterclaim must be filed by February 21, 2017.
2.

Rule 12(b)(6) Breach of Contact Analysis

The Court has determined that UWSI has standing to sue
Adams for breach of the Letter of Intent and that both UWSI
and Aguieus have standing to sue Adams for breach of the
Mutual Confidentiality and Nondisclosure Agreement. The Court
now addresses whether UWSI and Aguieus state a claim for
breach of these agreements.
The elements of a breach of contract action are “(1) the
existence of a contract, (2) a breach of the contract, and (3)
24

damages resulting from the breach.” Rollins, Inc. v. Butland,
951

So.

2d

860,

876

(Fla.

2nd

DCA

2006).

In

the

Counterclaims, UWSI and Aguieus allege that the Letter of
Intent

and

the

Mutual

Confidentiality

and

Nondisclosure

Agreement are contracts, that Adams breached the contracts,
and that UWSI and Augieus suffered damages as a result. (Doc.
# 109 at ¶¶ 57-64; Doc. # 117 at ¶¶ 21-26).
Adams’ arguments that the relevant breach of contract
Counterclaims lack specificity are unavailing.
Adams

argues:

“Nothing

indicates

when

For instance,

the

confidential

information was disclosed or whether the information was
conveyed

in

person,

by

phone,

or

through

electronic

transmission. . . . [the] conclusory assertions . . . do not
answer such basic questions as who, what, when, or how.” (Doc.
# 123 at 7). However, none of the Counterclaims allege fraud,
which would require such a greater specificity under Fed. R.
Civ. P. 9(b). The allegations in the questioned Counterclaims
accusing

Adams

confidential

of

wrongfully

information

to

using

create

UWSI

the

and

Patrol

Aguieus’
Rifle

are

sufficient to place Adams on notice regarding the nature of
the claims.

As argued by Aguieus:

Count 1 of Aguieus’s Counterclaim alleges that
[Adams] breached the [Mutual Confidentiality and
Nondisclosure
Agreement]
by
using
Aguieus’
disclosed
Confidential
Information
(a
term
specifically defined in Paragraph 7 of the
Counterclaim and Section 1 of the [Mutual
25

Confidentiality and Nondisclosure Agreement]),
including product plans, designs, and hardware
configuration information, to launch [Adams’] Small
Frame .308 Rifle (aka-Patrol Rifle), and that
Aguieus has been damaged as a result. No further
“particularity” is required for a breach of
contract claim.
(Doc. # 131 at 6).
Adams does not agree with the factual allegations leveled
by UWSI and Aguieus, but that is a matter for a later
determination by a fact-finder, not for disposition on a
Motion to Dismiss or Motion to Strike. The relevant breach of
contract Counterclaims contain more than sufficiently detailed
factual allegations to place Adams on notice regarding the
alleged breaches. The Court accordingly denies Adams’ Motion
to Dismiss UWSI and Aguieus’ Counterclaims for breach of the
Mutual Confidentiality and Nondisclosure Agreement and UWSI’s
Counterclaim for breach of the Letter of Intent.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Adams Arms, LLC’s Motion to Dismiss or Strike Unified
Weapons Systems, Inc.’s First Amended Counterclaim (Doc.
# 119) is DENIED.

(2)

Adams Arms’ Motion to Dismiss Aguieus, LLC’s Counterclaim
(Doc. # 123) is GRANTED IN PART to the extent that
Aguieus’ Counterclaim for breach of the Letter of Intent
is dismissed with leave to amend by February 21, 2017.
26

The Motion is otherwise DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 8th
day of February, 2017.

27