Kennerdy v. TMF Plastic Solutions, LLC
Filing
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ORDER: Defendant TMF Plastic Solutions, LLC's 20 Motion to Dismiss is GRANTED IN PART and DENIED IN PART. Count 12 of plaintiff Tonie Kennerdy's 15 Amended Complaint is DISMISSED WITHOUT PREJUDICE. Signed by Judge Kathryn Kimball Mizelle on 1/27/2025. (SJR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TONIE KENNERDY,
Plainti?,
v.
Case No: 8:24-cv-2176-KKM-SPF
TMF PLASTIC SOLUTIONS, LLC,
Defendant.
___________________________________
ORDER
Defendant TMF Plastic Solutions, LLC, moves to dismiss the last two counts of
plainti? Tonie Kennerdy’s thirteen-count amended complaint. Because Kennerdy states a
claim for tortious interference with a business relationship but fails to state a claim for
defamation, the motion is granted in part and denied in part.
I.
BACKGROUND
TMF terminated Kennerdy on April 4, 2023. Am. Compl. (Doc. 15) ¶ 34. Kennerdy
now sues his former employer for race discrimination, sexual harassment, defamation, and
tortious interference with a business relationship. See generally Compl. (Doc. 1); Am.
Compl. TMF moves to dismiss only the last two counts of Kennerdy’s complaint, which
plead defamation and tortious interference with a business relationship under Florida law.
Mot. to Dismiss (MTD) (Doc. 20); see Am. Compl. ¶¶ 109–20 (Count Twelve); id.
¶¶ 121–27 (Count ?irteen).
?e factual predicate for both those counts is the same. Kennerdy alleges that he
began work with TMF in December 2022 as a temporary employee through a sta?ng
agency, Elite Sta?ng. Id. ¶¶ 14, 35. After TMF terminated Kennerdy, Brittany
Junker?eld—Kennerdy’s former supervisor and one of his claimed harassers—called Elite
Sta?ng and lied 1 about his termination, falsely claiming that TMF ?red him because he
made sexist comments about his supervisors. Id. ¶¶ 18, 35. Kennerdy says that “Elite
Sta?ng stopped assigning [him] to comparable positions in terms of pay, hours, and
location” because of Junker?eld’s false statement. Id. ¶ 36.
TMF contends that neither count states a claim for relief. See generally MTD; FED.
R. CIV. P. 12(b)(6).
II.
LEGAL STANDARD
Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the
claim showing that the pleader is entitled to relief.” This pleading standard “does not
require ‘detailed factual allegations,’ but it demands more than an unadorned,
TMF disputes Kennerdy’s claim that it “knew or should have known the ‘defamatory statements were
false’ ” because TMF says that it told him “that it had recorded video of him making derogatory statements
about his female supervisors.” MTD at 4 n.2. Yet the rule for a motion to dismiss is that a plainti? ’s
allegations must be taken as true. See Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). I
therefore give no weight to TMF’s e?orts to cast doubt on Kennerdy’s allegations.
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the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that
offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action
will not do.’ ” Id. (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it
tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ ” Id. (quoting
Twombly, 550 U.S. at 557).
“To survive a motion to dismiss” for failure to state a claim, a plaintiff must plead
sufficient facts to state a claim that is “plausible on its face.” Id. (quoting Twombly, 550
U.S. at 570). A claim is plausible on its face when a “plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. When considering the motion, courts accept the complaint’s
factual allegations as true and construe them in the light most favorable to the plaintiff.
Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). Courts should limit their
“consideration to the well-pleaded factual allegations, documents central to or referenced
in the complaint, and matters judicially noticed.” La Grasta v. First Union Sec., Inc., 358
F.3d 840, 845 (11th Cir. 2004), abrogated on other grounds by Twombly, 550 U.S. 544.
III.
ANALYSIS
Because Kennerdy fails to allege that Junker?eld made the defamatory statements
to Elite Sta?ng in the scope of her employment for TMF, Count 12 is dismissed without
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prejudice. I deny TMF’s motion to dismiss as to Count 13 because Kennerdy has alleged
improper methods su?cient to negate any claim of privilege TMF may have.
A. Kennerdy Fails to State a Claim for Defamation
To plead a claim for defamation against an ordinary person or entity under Florida
law, a plainti? must allege “(1) publication; (2) falsity;” (3) that the defendant acted with at
least negligence; “(4) actual damages;[2] and” (5) that the statement is defamatory. Jews For
Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008); accord Kie?er v. Atheists of Fla., Inc.,
269 So. 3d 656, 659 (Fla. 5th DCA 2019). Decisions in this district have also required a
defamation plainti? to plead “the identity of the speaker, a description of the statement,
and provide a time frame within which the publication occurred” to state a claim. See, e.g.,
Jacoby v. Cable News Network, Inc., 537 F. Supp. 3d 1303, 1309 (M.D. Fla. 2021) (quoting
Five for Ent. S.A. v. Rodriguez, 877 F. Supp. 2d 1321,1328 (S.D. Fla. 2012)), a? ’d, No. 2112030, 2021 WL 5858569 (11th Cir. Dec. 10, 2021). 3
Damages are presumed if the alleged statements are actionable per se. See, e.g., Campbell v. Jacksonville
Kennel Club, 66 So. 2d 495, 497 (Fla. 1953); accord Hoch v. Rissman, Weisberg, Barrett, 742 So. 2d 451,
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457 (Fla. 5th DCA 1999). While Kennerdy’s Amended Complaint does not formally style his defamation
action as per se, both parties treat it as a per se claim. See MTD at 4 n.1; Resp. (Doc. 22) at 3–4.
Traced back, those decisions ultimately rely almost exclusively on the decision in Fowler v. Taco Viva, Inc.,
646 F. Supp. 152 (S.D. Fla. 1986). Fowler in turn cites to Hawke v. Broward National Bank of Fort
Lauderdale, which held that the plainti?s had failed to state a claim for defamation because they failed to
allege “the disputed words used[,] . . . that the publication or utterances were false[,] and . . . su?cient
circumstances to show malice in order to negate the presence of a quali?ed privilege.” 220 So. 2d 678, 679–
80 (Fla. 4th DCA 1969) (per curiam). It is thus not clear that Fowler was correct to categorically conclude
that a plainti? must always allege the speaker’s identity, the statement’s content, and the publication’s
timeframe to state a claim for defamation as a matter of Florida law, though these sorts of details will often
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TMF contends that Kennerdy failed to allege when the defamatory statements were
published, to whom they were published, and whether they were made during the speaker’s
performance of her job duties. MTD at 5–6. Kennerdy adequately pleads when the
statements were published and to whom they were published. He alleges that “[w]ithin
days of [his] termination [April 4, 2023], Junker?eld falsely told [TMF]’s contact with
Elite Sta?ng . . . that [he] was terminated for making sexist comments about his
supervisors.” Am. Compl. ¶¶ 34–35. ?is allegation adequately informs TMF of the time
frame for the statement, and TMF cites no authority suggesting that the allegation must
be more speci?c “within days” of a date certain. It also tells TMF that the statements were
made to its “contact with Elite Sta?ng,” though Kennerdy does not plead this individual’s
name. Id. ¶ 35. Bell v. Novartis Pharmaceuticals Corp., which TMF cites for the
proposition that a defamation plainti? must plead with speci?city the identity of the person
to whom the defamatory statement was published, concluded only that plainti? Bell’s
failure to plead the hearer’s identity was one of several inadequacies supporting the
conclusion that Bell had failed to state a claim for defamation. No. 808-CV-00030-EAKEAJ, 2008 WL 2694893, at *4 (M.D. Fla. July 3, 2008). TMF points to no authority
be necessary for a claim to be “plausible” enough to survive a motion to dismiss under the Federal Rules of
Civil Procedure. Iqbal, 556 U.S. at 678.
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establishing that failure to plead the hearer’s name, by itself, means a plainti? fails to state
a claim for defamation.
Yet TMF is correct that Kennerdy fails to adequately allege that Junker?eld made
the defamatory statement in the course of her employment with TMF. A corporation is
liable for the defamatory statements of an employee only if (1) the employee was acting
within the scope of his employment when he made the defamatory statement, and (2) the
defamatory statement was published “in the actual performance of [the employee’s] duties
touching the matter in question.” Baker v. Atl. Coast Line R. Co., 192 So. 606, 185–86 (Fla.
1939); see also Schreidell v. Shoter, 500 So. 2d 228, 232 (Fla. 3d DCA 1986); Mawk v.
Kaplan Univ., No. 613CV1469ORL22KRS, 2015 WL 12819185, at *9 (M.D. Fla. Feb. 17,
2015).
Kennerdy alleges no facts tending to show that Junker?eld made the defamatory
statements to Elite Sta?ng within the scope of her employment or in performance of her
duties at TMF. See generally Am. Compl. While he says in his Response that “Junker?eld
made the comments in her capacity as [his] supervisor providing feedback to the sta?ng
agency about their candidate’s performance,” Resp. (Doc. 22) at 4, this allegation is not in
his Amended Complaint, see Dorman v. Aronofsky, 36 F.4th 1306, 1317 (11th Cir. 2022)
(“Facts contained in a motion or brief cannot substitute for missing allegations in the
complaint.” (quoting EEOC v. Catastrophe Mgmt. Sols., 852 F.3d 1018, 1030 n.5 (11th
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Cir. 2016)) (cleaned up)). Absent allegations tending to show that Junker?eld acted within
the scope of her employment, Kennerdy fails to state a claim for defamation against TMF.
See, e.g., Akzo Nobel Coatings, Inc. v. Auto Paint & Supply of Lakeland, Inc., No. 8:09CV-2453-T-30TBM, 2010 WL 2821950, at *4 (M.D. Fla. July 16, 2010) (dismissing
defamation count without prejudice for, among other things, failure to “allege facts that
would show that the speaker made the statement within the scope of his or her
employment”).
Accordingly, I dismiss without prejudice Count 12 of Kennerdy’s Amended
Complaint.
B. Kennerdy States a Claim for Tortious Interference
To state a claim for tortious interference with a business relationship, a plainti? must
allege “(1) the existence of a business relationship, not necessarily evidenced by an
enforceable contract; (2) knowledge of the relationship on the part of the defendant; (3) an
intentional and unjusti?ed interference with the relationship by the defendant; and
(4) damage to the plainti? as a result of the breach of the relationship.” Tamiami Trail
Tours, Inc. v. Cotton, 463 So. 2d 1126, 1127 (Fla. 1985) (per curiam). TMF contends that
Kennerdy fails to state a claim because (1) he fails to allege a contract “between himself and
Elite Sta?ng,” and (2) TMF is not a stranger to Kennerdy and Elite Sta?ng’s business
relationship and thus is privileged to interfere in the relationship. MTD at 6–9.
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To start, TMF is wrong that Kennerdy needed to allege the existence of a contract.
While Count 13 is styled as for “Tortious Interference with Contractual Relationship,” the
substance of his allegations is that TMF tortiously interfered with his business relationship
with Elite Sta?ng. Am. Compl. ¶¶ 122–24 (“Defendant intentionally and unjusti?ably
interfered with Plainti? ’s relationship with Elite Sta?ng.”); see Conway v. Taylor,
No. 605CV1714ORL22KRS, 2006 WL 8439375, at *2 (M.D. Fla. Oct. 31, 2006)
(construing a count based on the substance of the allegations rather than the heading). And
a claim of tortious interference with a business relationship does not require an enforceable
contract. Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So. 2d 812, 814 (Fla. 1994);
accord Ozyesilpinar v. Reach PLC, 365 So. 3d 453, 460 (Fla. 3d DCA 2023).
TMF’s argument that it is privileged to interfere in Kennerdy’s relationship with
Elite Sta?ng also fails to justify dismissal. While Florida law recognizes an insider’s or
competitor’s privilege to interfere in a business relationship, that privilege is quali?ed—it
requires that the defendant act without impropriety, including “ ‘a purely malicious motive’
divorced from any ‘legitimate competitive economic interest.’ ” Duty Free Americas, Inc. v.
Estee Lauder Companies, Inc., 797 F.3d 1248, 1280 (11th Cir. 2015) (quoting Heavener,
Ogier Servs., Inc. v. R. W. Fla. Region, Inc., 418 So. 2d 1074, 1077 (Fla. 5th DCA 1982));
see also KMS Rest. Corp. v. Wendy’s Int’l, Inc., 361 F.3d 1321, 1327 (11th Cir. 2004)
(“Florida decisions also support KMS’ contention that even where the defendant’s motive
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is not purely malicious, a tortious interference claim may succeed if improper methods were
used.”). Here, Kennerdy alleges that Junker?eld knowingly made false statements to Elite
Sta?ng about Kennerdy’s conduct after TMF terminated him. Am. Compl. ¶¶ 35, 124.
Drawing all reasonable inferences in Kennerdy’s favor, this is enough to raise an inference
that Junker?eld acted with malice such that any interference would be improper and the
quali?ed privilege would not apply. See de Cortes v. Brickell Inv. Realty, LLC, 546 F. Supp.
3d 1332, 1345 (S.D. Fla. 2021) (refusing to dismiss a tortious interference count on similar
grounds).
Because I conclude that Kennerdy has adequately alleged improper methods of
interference, I need not decide whether TMF might otherwise be privileged to interfere.
See MTD at 8 (arguing that TMF is privileged to interfere because it had an economic
interest in Kennerdy’s relationship with Elite Sta?ng).
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IV.
CONCLUSION
Accordingly, the following is ORDERED:
1.
Defendant TMF Plastic Solutions, LLC’s Motion to Dismiss (Doc. 20) is
GRANTED IN PART and DENIED IN PART.
2.
Count 12 of plainti? Tonie Kennerdy’s Amended Complaint (Doc. 15) is
DISMISSED WITHOUT PREJUDICE.
ORDERED in Tampa, Florida, on January 27, 2025.
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