REALSEC INC. v. ANDEANTRADE S.A. et al
Filing
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ORDER granting in part and denying in part 11 Defendants Andeantrade, S.A.'s and Oscar Trujillo's Motion to Dismiss or Alternatively to Stay the Action. The complaint is hereby dismissed without prejudice concerning Defendants Andeantrade and Trujillo. Signed by Magistrate Judge Jonathan Goodman on 11/24/2015. (tr00)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 15‐20958‐CIV‐MARTINEZ/GOODMAN
REALSEC, INC.,
Plaintiff,
vs.
ANDEANTRADE, S.A., et al.,
Defendants.
______________________________/
ORDER ON DEFENDANTS ANDEANTRADE, S.A.’S AND OSCAR TRUJILLO’S
MOTION TO DISMISS OR ALTERNATIVELY TO STAY THE ACTION
Plaintiff Realsec, Inc. (“Realsec”) filed this Action “for violation of a
confidentiality agreement, fraud, tortious interference and conspiracy regarding Realsec’s
contract to build a software and hardware platform for the justice department in
Ecuador and the Defendant’s [alleged] efforts to interfere with same so they could
siphon off a portion of the costs of the project to themselves.” [ECF No. 1, p. 1]
(emphasis supplied). Realsec served two of the three named Defendants, Andeantrade,
S.A. (“Andeantrade”) and Oscar Trujillo (“Trujillo”). The third Defendant, Asetelsos,
Cia Ltd. (“Asetelsos”), was not served and has yet to appear in this Action.1 The parties
consented [ECF No. 21, p. 6] to full magistrate judge jurisdiction for all discovery and
pre‐trial matters, not including summary judgment. District Court Judge Jose E.
1
The Undersigned will be entering a separate Order to address this issue.
Martinez then referred to the Undersigned all pretrial motions (other than summary
judgment, the scheduling of pretrial deadlines and setting the trial date) for final orders.
[ECF No. 23].
Defendants Andeantrade and Trujillo (collectively referred to as “Defendants”)
moved to dismiss, or, in the alternative, to stay this Action on four grounds: (1) the
Action is controlled and precluded by an arbitration provision in the contract on which
Realsec bases its claims; (2) there is a lack of personal jurisdiction over Defendants; (3)
Realsec failed to state a claim on which relief can be granted; and (4) Realsec failed to
join an indispensable party, Andeantrade, Inc. (“Andeantrade Florida”), a Florida
corporation who is a signatory to the contract on which Realsec bases its claims. [ECF
No. 11]. For the reasons outlined below, the Undersigned grants in part Defendants’
motion.
I.
FACTUAL BACKGROUND2
This dispute arises “from a business deal gone bad,” in which Realsec was hired
to create an e‐filing system for the federal judiciary in Ecuador (the “Judicial Council”).
[ECF No. 1, p. 3]. The Judicial Council did not directly contract with Realsec, however.
Instead, the Council contracted with Asetelsos to build the e‐filing system. [Id.]. Realsec
alleges that Asetelsos is “merely a nominee or beard of Andeantrade in Ecuador
2
The factual background is derived from Realsec’s complaint [ECF No. 1], the
allegations of which are, in accordance with Federal Rule of Civil Procedure 12,
presumed as true for the purposes of this Order. See Fed. R. Civ. P. 12.
2
propped up to hide Andeantrade’s real interest in the illegal awarding of this
government contract and structured to illegally siphon off government funds.” [Id.].
Realsec alleges that, at all times, both Asetelsos and Andeantrade Florida acted as shells
for Andeantrade and its principal, Trujillo (who is also the principal of Andeantrade
Florida). [Id., at p. 4].
Andeantrade Florida entered into a contract with Realsec (with Realsec to
provide 100% of the necessary work to create the e‐filing system at a fraction of the
price being paid to Asetelsos). This agreement between Andeantrade Florida and
Realsec is hereinafter referred to as the “Contract”. [Id.]. Realsec performed under the
Contract until, it alleges, Andeantrade Florida prematurely terminated the Contract,
claiming that Realsec breached the Contract. [Id., at p. 4]. The dispute between
Andeantrade Florida and Realsec is being resolved in a separate proceeding per the
Contract’s arbitration clause. [ECF Nos. 1, p. 7; 15, p. 8].
Upon the allegedly‐premature termination of the Contract, Astelsos and
Andeantrade entered into a contract with Realsec’s competitor, Bit4id, to complete the
e‐filing project for the Judicial Council. [ECF No. 1, p. 11]. In order to complete the
project with Bit4id, Defendants allegedly doctored a “final consultancy document”
provided by Realsec to the technology board of the Judicial Council in an effort to
destroy the deal with Realsec in favor of finishing the project with Bit4id. [Id.]. Realsec
alleges that Bit4id’s involvement in completing the project resulted in Realsec’s
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proprietary technology being disclosed to Bit4id, in violation of the Contract. [Id., at p.
12].
Realsec thus claims that Andeantrade Florida, as a “mere[] . . . puppet of
Andeantrade and Asetelsos[,]” acted in concert with Trujillo to conspire to commit
fraud upon Realsec and to disclose Realsec’s confidential and proprietary information
to a competitor in violation of non‐disclosure agreements in the Contract. [Id.]. The
complaint consists of four Counts: (1) Breach of the non‐disclosure agreement in the
Contract by Andeantrade (even though Andeantrade is not a party to the Contract); (2)
Breach of the non‐disclosure agreement in the Contract by Asetelsos (even though
Asetelsos is also not a party to the contract); (3) Tortious interference with the
advantageous business relationship between Realsec and the Judicial Council by all
Defendants (including Asetelsos); and (4) Fraud by Trujillo. [ECF No. 1].
II.
LEGAL STANDARDS AND ANALYSIS
Defendants’ motion is based on four separate grounds. However, it is only
necessary for the Undersigned to address the first ground ‐‐ compelling arbitration ‐‐
because it is a threshold issue which, if resolved in Defendants’ favor, moots all other
defense arguments.
Arbitration
Section 3 of the Federal Arbitration Act (“FAA”), requires that a court, upon
motion by a party to an action in federal court, stay the action if it involves an “issue
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referable to arbitration under an agreement in writing.” 9 U.S.C. § 3. The FAA mandates
that a contract clause requiring the parties to “submit to arbitration an existing
controversy arising out of such a contract . . . shall be valid, irrevocable and
enforceable[.]” 9 U.S.C. § 2.
“A prime objective of an agreement to arbitrate is to achieve ‘streamlined
proceedings and expeditious results.’” Preston v. Ferrer, 552 U.S. 346, 357‐58 (2008)
(citing Mitsubishi Motors Corp. v. Soler Chrysler–Plymouth, Inc., 473 U.S. 614, 633 (1985).
See also Allied‐Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265, 278, (1995);
Southland Corp. v. Keating, 465 U.S. 1, 7 (1984) (“There is strong presumption in favor of
enforcing arbitration clauses in the context of international commercial disputes”);
Pysarenko v. Carnival Corp., No. 14‐20010‐CIV, 2014 WL 1745048, at *1 (S.D. Fla. Apr. 30,
2014) affʹd, 581 F. Appʹx 844 (11th Cir. 2014) (citing Lindo v. NCL (Bahamas), 652 F.3d
1257, 1269, 1275 (11th Cir. 2011)).
“Therefore, ‘questions of arbitrability must be addressed with a healthy regard
for the federal policy favoring arbitrations.’” MS Dealer Serv. Corp. v. Franklin, 177 F.3d
942, 947 (11th Cir. 1999). “Notwithstanding this strong federal policy, however,
arbitration is a matter of contract and a party cannot be required to submit to arbitration
any dispute, which he has not agreed so to submit. As a general rule, therefore, the
partiesʹ intentions control, but those intentions are generously construed as to issues of
arbitrability.” Id. (internal citations and quotations omitted).
5
This Action involves two of three Defendants (non‐signatories to the Contract)
moving to compel Realsec (a signatory to the Contract) to arbitration.3 The “lack of a
written arbitration agreement is not an impediment to arbitration.” Sunkist Drinks, Inc.
v. Sunkist Growers, Inc., 10 F.3d 753, 757 (11th Cir. 1993).
In MS Dealer, the Eleventh Circuit recognized that there are limited exceptions
that permit non‐signatories to a contract to compel arbitration against a signatory. 177
F.3d at 947. More specifically, there are three such exceptions: equitable estoppel,
agency or related principles, and third‐party beneficiary. Id. Defendants argue that
equitable estoppel applies here to permit them to compel arbitration. The Undersigned
agrees.
As District Judge Robert N. Scola, Jr. stated in Gunson v. BMO Harris Bank, N.A.:
Equitable estoppel allows a non‐signatory to enforce the provisions of a
contract against a signatory in two circumstances. First, equitable estoppel
applies when the signatory to the contract relies on the terms of the
contract to assert his or her claims against the non‐signatory. In other
words, arbitration is appropriate when the signatoryʹs claim against a
non‐signatory “makes reference to” or “presumes the existence of” the
agreement. MS Dealer Serv. Corp., 177 F.3d at 947; Armas v. Prudential Sec.,
Inc., 842 So.2d 210, 212 (Fla. 3d DCA 2003). Second, equitable estoppel
applies when the signatory raises allegations of concerted misconduct by
both the non‐signatory and one or more of the signatories to the contract.
See Bailey v. ERG Enter., 705 F.3d 1311, 1321 (2013) (citing MS Dealer Serv.
Corp., 177 F.3d at 947); Marcus v. Fla. Bagels, LLC, 112 So.3d 631, 633–34
(Fla. 4th DCA 2013). In other words, equitable estoppel precludes a party
from “trying to have his cake and eat it too”—that is, using certain
3
Technically, Defendants’ motion is a “motion to dismiss,” but it is, in effect, a
partial motion to compel arbitration, which, if granted, will result in this Action being
stayed or dismissed pending completion of the arbitration.
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provisions of the contract to their benefit to help establish their claim
while also attempting to avoid the burdens of the other provisions. In re
Humana Inc. Managed Care Litig., 285 F.3d 971, 976 (11th Cir. 2002) (citation
omitted).
43 F. Supp. 3d 1396, 1401 (S.D. Fla. 2014). Defendants argue that both circumstances
apply in this Action. The Undersigned agrees.
In responding to the motion to compel arbitration, Realsec argues that (1)
Defendants are not parties to the Contract and therefore cannot enforce its arbitration
terms, and (2) Realsec is not actually attempting to enforce the Contract. [ECF No. 15, p.
2]. This position is inaccurate, both factually and legally.
As the Eleventh Circuit ruled in MS Dealer, non‐signatories can, in fact, enforce
arbitration agreements against signatories in specific circumstances. The present lawsuit
is precisely one of those circumstances.
Realsec unpersuasively asserts that its claims do not rely on the terms of the
Contract. However, Count I of the complaint unambiguously charges Andeantrade
with a breach of the Contract. [ECF No. 1, pp. 12‐13] (“Andeantrade breached the
terms/the non‐disclosure agreement attached hereto as ex A”).4 Thus, it is apparent on
the face of the complaint that Realsec is attempting to enforce at least this contractual
provision through this Action. Count II of the complaint solely invokes Asetelsos, so the
4
“Ex A” or Exhibit A [ECF No. 1‐1] is an untranslated, Spanish‐language portion
of the Contract attached to the complaint, on which Realsec has underlined certain
portions of the text.
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Undersigned will not address that cause of action here, as Astelos is not a party to the
Contract and has not been served.
Count III of the complaint alleges that Defendants interfered in an advantageous
business relationship between Realsec and the Judicial Council. [Id., at pp. 13‐14]. As the
complaint makes abundantly clear, however, the only “business relationship” between
Realsec and the Judicial Council is merely Realsec’s Contract with Andeantrade Florida,
under which Realsec developed hardware and software for Andeantrade Florida, who,
in turn, passed that finished product through Defendants to the Judicial Council. Thus,
the Contract itself is, in essence, what Realsec claims was interfered with in this Count.
Accordingly, the factual basis alleged for Realsec’s allegation in Count III is, again,
entirely and directly derived from the Contract.
Count IV is a claim of fraud against Trujillo. Although, through the admitted
pleadings error of Realsec,5 the requisite statements needed to allege with “particularity
the circumstances constituting fraud or mistake”6 are absent, Realsec does incorporate
by reference the first fifty paragraphs of the complaint to establish the general factual
basis of the claim. [Id., at p. 14]. The general factual basis of the complaint in those fifty
paragraphs is, to quote Realsec’s complaint itself, an action “for violation of a
5
Realsec admits in its response to the motion to dismiss and/or stay that its
counsel erred in ending the complaint midsentence, after a semicolon, before listing the
specific allegations of fraud with particularity per the heightened pleading standards
required for a fraud allegation under Federal Rule 9(b). [ECF No. 15, pp. 7‐8].
6
Fed. R. Civ. P. 9(b).
8
confidentiality agreement, fraud, tortious interference and conspiracy regarding Realsec’s
contract to build a software and hardware platform for the justice department in
Ecuador[.]” [Id., at p. 1]. Thus, Count IV, being dependent on the factual allegations set
out in paragraphs 1‐50, also arises directly from the Contract.
Furthermore, concerning the fraud allegation, Realsec specifically alleges that
“Andeantrade‐Florida is merely the puppet of Andeantrade and Asetelsos and these
parties, acting together with Trujillo, have conspired to commit fraud upon Realsec[.]”
[ECF No. 1, p. 4]. Thus, the Defendants’ alleged fraud was committed in concert with
Andeantrade Florida. “[E]quitable estoppel applies when the signatory raises
allegations of concerted misconduct by both the non‐signatory and one or more of the
signatories to the contract.” Gunson, 43 F. Supp. 3d at 1401 (citing Bailey, 705 F.3d at
1321). The fraud allegation in the complaint makes exactly this assertion of concerted
conduct with a signatory to the Contract, and as such, subjects Count IV to the
arbitration clause on this ground as well.
“[A]rbitration is appropriate when the signatoryʹs claim against a non‐signatory
‘makes reference to’ or ‘presumes the existence of’ the agreement.” Gunson, 43 F. Supp.
3d at 1401 (quoting MS Dealer Serv. Corp., 177 F.3d at 947). As the Undersigned
demonstrated above, all three claims against Defendants do more than just ‘make
reference to’ or ‘presume the existence of’ the Contract with the arbitration clause. In the
instant case, the only connection alleged between Defendants and Realsec is through
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Defendants’ alleged puppeteering of a contractual partner of Realsec (i.e., Andeantrade
Florida). When all allegations and references concerning Andeantrade Florida and its
Contract with Realsec (which Realsec admits is subject to an arbitration clause [ECF Nos.
1, p. 7; 15, p. 8]) are removed from the complaint, there is no connection remaining
between Defendants and Realsec.7
The arbitration clause in the Contract, in a very broad and inclusive fashion,
requires that disagreements stemming from or relating to the Contract must be
arbitrated. Section 10.1 of the Contract (as translated into English by Defendants)8 states:
In case of disagreements derived from the instant contract or related to
same, the parties undertake to submit said disagreements to the ADR
disagreement resolution procedure of the International Chamber of
Commerce. In the event that the disagreement is not resolved through
ADR within 45 days of the filing of the demand for ADR, or at the
expiration of some other time period agreed to in writing by the parties,
said disagreement shall be definitively resolved in accordance with the
Arbitration regulations of the International Chamber of Commerce by an
arbitrator named in accordance with said regulations. The arbitration shall
7
While it is true that Trujillo is the principal of Andeantrade Florida [ECF No. 15‐
1], anything he did in that capacity would be subject to the arbitration agreement in the
Contract. Thus, Realsec is burdened with providing allegations against Trujillo that (1)
do not arise from the Contract and (2) were done in either his independent capacity or
in his capacity as the alleged principal of Andeantrade. Realsec’s lengthy recitation of
the facts in this case, even if presumed true, do not establish either of those.
8
Defendants attached the original Contract to their motion in its untranslated
form, and provided a translation of Section 10.1 in the motion. [ECF No. 11, pp. 3, 19‐
54]. Additionally, Realsec attached the original version of a portion of the Contract to its
complaint [ECF No. 1‐1], which also includes Section 10.1 in its original, untranslated
form.
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be conducted in Spanish, in the city of Miami, State of Florida, United
States of America.
[ECF No. 11, p. 3].
It is abundantly clear that Realsec is attempting to avoid the mandatory
arbitration process by filing this Action against Andeantrade and Trujillo. The Contract
is unequivocal in its requirement of arbitration for disagreements arising from and
related to the Contract. And while Defendants are not themselves signatories9 to the
Contract, equitable estoppel, as applied in this Circuit, provides non‐signatories with
the power to enforce an arbitration clause against a signatory. See MS Dealer Serv. Corp.,
177 F.3d at 947. Defendants have timely moved to enforce that arbitration provision and
Realsec has provided no convincing grounds for the Court to deny their motion.
III.
CONCLUSION
Therefore, the Undersigned grants Defendants’ motion to compel arbitration.
And denies as moot the remaining requests for relief in Defendants’ motion.
Accordingly, the complaint is hereby dismissed without prejudice concerning
Defendants Andeantrade and Trujillo. Because Defendant Asetelsos has not yet been
served with the complaint (a matter to be addressed by the Undersigned in a separate
9
Trujillo is technically a signatory of the Contract, however, he only signed it in
his representational capacity as the principal of Andeantrade Florida. [ECF Nos. 1‐1, p.
9; 11, p. 29].
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Order), this Order does not impact the claims made against Asetelsos, and so the case
shall (for now) remain open as to this one Defendant.
Done and Ordered in Chambers, in Miami, Florida, November 24, 2015.
Copies furnished to:
Honorable Jose E. Martinez
All Counsel of Record
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