SCANZ TECHNOLOGIES, INC v. JEWMON ENTERPRISES, LLC et al

Filing 56

OMNIBUS ORDER, granting 39 Motion to Dismiss for Lack of Jurisdiction; granting in part and denying in part 40 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 41 Motion to Dismiss; denying 42 Motion M OTION for the Court to Take Judicial Notice; granting in part and denying in part 46 Motion MOTION for the Court to Take Judicial Notice. Signed by Judge Robert N. Scola, Jr on 1/6/2021. See attached document for full details. (mee)

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United States District Court
for the
Southern District of Florida
Scanz Technologies, Inc., Plaintiff,
v.
JewMon Enterprises, LLC and
others, Defendants.

)
)
)
) Civil Action No. 20-22957-Civ-Scola
)
)

Omnibus Order
This matter is before the Court upon Timothy Bohen’s (ECF No. 39);
Stockstotrade.com Inc and Zachary Westphal’s (ECF No. 40); and JewMon
Enterprises, LLC, Timothy Sykes, Millionaire Publishing, LLC (a Florida limited
liability corporation), Million Publishing, LLC (a Colorado limited liability
corporation), and Millionaire Media, LLC’s (ECF No. 41) motions to dismiss.
Additionally before the Court is the Defendants’ joint request for the Court to
take judicial notice of ten tweets from the twitter account @GetScanz (ECF No.
42) and the Plaintiff’s request for the Court to take judicial notice of certain
YouTube videos and various other materials (ECF No. 46) filed in connection
with the parties’ motion to dismiss briefing.
1. Background
The Plaintiff, Scanz Technologies, Inc. (“Scanz”) has brought suit against
the Defendants for alleged theft of its trade secrets. Scanz is a Canadian
corporation that develops and sells “scanning technology used by traders and
other similar constituents of the securities industry involving the public capital
markets.” (ECF No. 1, at ¶ 3.) The Plaintiff alleges that the Defendants
“engaged in a civil conspiracy . . . to conduct their business enterprises using”
Scanz’s trade secrets “which they illegally stole from Scanz.” (ECF No. 1, at ¶
13.) In support of their allegations as to conspiracy, Scanz asserts that
Defendants Sykes and Westphal are the members of JewMon Enterprises, LLC,
a Florida corporation, and further state that Defendants JewMon, Millionaire
Publishing, Millionaire Media, and Stockstotrade.com “were each the alter ego”
of Sykes. (ECF No. 1, at ¶¶ 4-6.) Moreover, the Plaintiff states that Timothy
Bohen was an “agent in fact” for the Defendants, and further states that Sykes,
with the assistance of Westphal and Bohen was able to “perpetuate the fraud of
a separate existence for each of the entities by disregarding their separateness

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and otherwise commingling and confusing their assets, properties and
business affairs.” (ECF No. 1, at ¶¶ 7, 14.)
Scanz became involved with Sykes and JewMon towards the end of 2012
when Scanz was contacted by Sykes on behalf of JewMon, seeking “white label”
licensure of Scanz’s programs “for use in connection with JewMon’s alleged
business model of promoting and selling to the general public various
strategies for becoming successful traders in the OTC micro-cap and penny
stock marketplaces.” (ECF No. 1, at ¶ 25.) In 2013, Scanz and JewMon entered
into a licensing agreement pursuant to which Scanz would provide JewMon
with a “worldwide, non-transferable, non-assignable, non-exclusive license to
use” Scanz’s programs so JewMon could offer its clients a desktop market
analysis platform via one of its websites, Stockstotrade.com. (ECF No. 1, at ¶
26.)
As part of the agreement between Scanz and JewMon, Scanz would
provide billing and support services to JewMon and JewMon would receive 30%
of all subscription-based revenues that arose from the licensing agreement,
with the remainder of the revenues going to Scanz. (ECF No. 1, at ¶ 27.) The
licensing agreement prohibited JewMon from copying the “look and feel” of
Scanz’s programs and prohibited JewMon from attempting to “reverse engineer,
decompile, disassemble, or otherwise reduce to human-perceivable form”
Scanz’s program. (ECF No. 1, at ¶ 28.) Scanz asserts that these prohibitions on
JewMon’s use of Scanz’s trade secrets survived termination of the licensing
agreement. (ECF No. 1, at ¶¶ 28-29.)
In April 2015, Scanz and JewMon terminated the licensing agreement via
a two-page Termination Notice. (ECF No. 1, at ¶ 30; see also ECF No. 1-1.) The
Plaintiff asserts that notwithstanding termination of the licensing agreement,
JewMon “remained bound in perpetuity” with respect to its obligations to,
among certain other obligations set forth in the Plaintiff’s complaint, (1) keep
confidential any and all designated non-public information obtained from
Scanz under the agreement; (2) cease and desist use of Scanz’s programs and
trade secrets; (3) refrain from asserting it had rights of any kind to Scanz’s
trade secrets; and (4) refrain from using, copying the “look and feel”, or
attempting to reverse engineer Scanz’s program or other Scanz’s trade secrets.
(ECF No. 1, at ¶ 30.)
After a period of initial compliance, Scanz asserts that beginning in
December 2016, Scanz began to suspect that Sykes may have started to deploy
a product similar to Scanz’s product and began an investigation into Sykes’s
program to see if it violated any of the parties’ agreements. (ECF No. 1, at ¶ 33.)
By August 2017, Scanz determined that Sykes’s program contained “not only
similar functionality” as Scanz’s program and trade secret protected

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information, “but actually contain[ed] virtually identical functionality” as
Scanz’s program. (ECF No. 1, at ¶ 34.) Scanz continued its investigation of
Sykes’s program and asserts that by May 2018, Scanz determined that Sykes’s
program “not only had progressed to an imitation of Scanz’s product offering
but that Sykes’s platform had progressed to containing a virtually identical
‘look and feel’ as compared to the most important core features” of Scanz’s
program. (ECF No. 1, at ¶ 36.) Accordingly, Scanz asserts that Sykes’s program
was stolen from Scanz in violation of the parties’ agreements and that Sykes
and his co-Defendants are now profiting off of Scanz’s trade secrets.
2. Legal Standard
When considering a motion to dismiss under Federal Rule 12(b)(6), the
Court must accept all of the complaint’s allegations as true, construing them in
the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282,
1284 (11th Cir. 2008). Under Federal Rule 8, a pleading need only contain “a
short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2). The plaintiff must nevertheless articulate “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id.
Thus, a pleading that offers mere “labels and conclusions” or “a formulaic
recitation of the elements of a cause of action” will not survive dismissal. Id.
In applying the Supreme Court’s directives in Twombly and Iqbal, the
Eleventh Circuit has provided the following guidance to the district courts:
In considering a motion to dismiss, a court should 1) eliminate any
allegations in the complaint that are merely legal conclusions; and
2) where there are well-pleaded factual allegations, assume their
veracity and then determine whether they plausibly give rise to an
entitlement to relief. Further, courts may infer from the factual
allegations in the complaint obvious alternative explanation[s],
which suggest lawful conduct rather than the unlawful conduct
the plaintiff would ask the court to infer.
Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F. App’x 136, 138 (11th
Cir. 2011) (citations omitted). “This is a stricter standard than the Supreme
Court described in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), which held
that a complaint should not be dismissed for failure to state a claim ‘unless it

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appears beyond doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.’” Mukamal v. Bakes, 378 F. App’x
890, 896 (11th Cir. 2010). These precepts apply to all civil actions, regardless
of the cause of action alleged. Kivisto, 413 F. App’x at 138
3. Analysis
A. Personal Jurisdiction Over Timothy Bohen
The Court turns first to Defendant Timothy Bohen’s argument that the
Court must dismiss the claims against him as the Court lacks either general or
specific personal jurisdiction over him. The Court notes that both Bohen and
the Plaintiff, Scanz, provided affidavits and other materials relating to the
Court’s exercise of personal jurisdiction over Bohen. Where a plaintiff meets its
initial burden to make out a prima facie case for a court’s exercise of personal
jurisdiction over a defendant by providing sufficient evidence in the complaint
to withstand a motion for to dismiss, courts may then consider affidavits,
documents, or other testimony provided by the defendant challenging the
allegations supporting personal jurisdiction. Stubbs v. Wyndham Nassau Resort
and Crystal Palace Casino, 447 F.3d 1357, 1360 (11th Cir. 2006); see also
Internet Solutions Corp. v. Marshall, 557 F.3d 1293, 1295 (11th Cir. 2009).
Should a defendant provide such material, the burden then shifts back to the
plaintiff to produce evidence supporting personal jurisdiction. Stubbs, 447 F.3d
at 1360. All reasonable inferences must be construed in favor of the
plaintiff. Id. Before courts may consider materials provided by a defendant and
plaintiff the court must first decide if the plaintiff has made out a prima facie
case supporting the court’s exercise of personal jurisdiction.
To determine whether a party has adequately alleged personal
jurisdiction over a foreign defendant, the Court first asks whether there is
jurisdiction under Florida’s long-arm statute and next determines whether the
exercise of jurisdiction comports with the Due Process Clause of the
Fourteenth Amendment. Waite v. All Acquisition Corp., 901 F.3d 1307, 1312
(11th Cir. 2018). Florida’s long-arm statute provides two means for subjecting
a foreign defendant to the jurisdiction of Florida courts: 1) “a defendant is
subject to specific personal jurisdiction—that is, jurisdiction over suits that
arise out of or related to a defendant’s contacts with Florida—for conduct
specifically enumerated in the statute”; and 2) “a defendant is subject to
general personal jurisdiction—that is, jurisdiction over any claims against a
defendant, whether or not they involve the defendant’s activities in Florida—if
the defendant engages in substantial and not isolated activity in Florida.” Id.
(internal quotations omitted) (emphasis in original) (discussing Fla. Stat. §

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48.193). Under either form of personal jurisdiction, the defendant must have
“‘certain minimum contacts with [the state] such that the maintenance of the
suit does not offend traditional notions of fair play and substantial justice.’” Id.
(citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). The inquiry
focuses on the defendant’s contacts with the state, and not the “random,
fortuitous, or attenuated” contacts it has by interacting with other persons
affiliated with the state. Walden v. Fiore, 571 U.S. 277, 284 (2014).
(1)

General Personal Jurisdiction

Under Florida’s long-arm statute, general jurisdiction “extends to the
limits on personal jurisdiction imposed by the Due Process Clause of the
Fourteenth Amendment.” Fraser v. Smith, 594 F.3d 842, 846 (11th Cir. 2010)
(discussing Florida law). Thus, determining whether general personal
jurisdiction is proper in Florida requires a one-step inquiry which requires
courts to determine whether the exercise of jurisdiction over a defendant would
exceed constitutional bounds. Id. An individual is subject to general
jurisdiction where the individual is domiciled. Daimler AG v. Bauman, 571 U.S.
117, 137 (2014). Here, both the Plaintiff and the Defendant Bohen agree that
Bohen is not a Florida resident. 1 Accordingly, the Court finds that Bohen is not
subject to the Court’s general personal jurisdiction.
(2)

Specific Personal Jurisdiction

As the Court does not have general personal jurisdiction over the
Defendant Bohen, the Court must determine if the Plaintiff has prima facie
plead that the Court has specific personal jurisdiction over Bohen. The Plaintiff
argues that the Court can exercise specific personal jurisdiction over the
Defendant Bohen because he was engaged in a conspiracy with Sykes and
Westphal to steal and profit from Scanz’s trade secret protected information.
(ECF No. 45, at 3.) “Florida courts have held that the state’s long-arm statute
can support personal jurisdiction over any alleged conspirator where any other
co-conspirator commits an act in Florida in furtherance of the conspiracy, even
if the defendant over whom personal jurisdiction is sought individually
committed no act in, or had no relevant contact with, Florida.” United Techs.,
Corp. v. Mazer, 556 F.3d 1260, 1281-82 (11th Cir. 2009).
While the complaint states that Bohen is a resident of Minnesota (ECF No. 1, at ¶ 7),
Bohen states in his motion to dismiss that he is a resident of Michigan (ECF No. 39, at
2). The Plaintiff states that they “take at face value Bohen’s statements that his
residence is actually nearby in the state of Michigan.” (ECF No. 45, at 3 n.4.) Regardless
of whether the Defendant Bohen resides in Minnesota or Michigan, it is clear the parties
agree that Bohen does not reside in Florida.

1

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To state a claim for civil conspiracy, a plaintiff must allege “(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 over act in pursuance of
the conspiracy, and (d) damage to plaintiff as a result of the acts done under
the conspiracy.” Paulson v. Cosmetic Dermatology, Inc., No. 17-20094-Civ, 2017
WL 248197, at *5 (June 8, 2017) (Scola, J.) (internal citations omitted).
Moreover, Florida law does not recognize an independent cause of action for
civil conspiracy, but rather, a plaintiff must allege an underlying illegal act or
tort on which the conspiracy is based. Id.
Upon review of the complaint, the Court finds that the Plaintiff has failed
to allege that there was any agreement between Bohen and Sykes or Westphal
to steal and profit from Scanz’s trade secrets. Instead, the complaint makes
conclusory references to all Defendants and generically states that they “acted
conspiratorially . . . by engaging in a scheme comprising specific and
intentional torts” and “[e]ach corporate and individual defendant has conspired
to repeatedly market, offer to sell, and then actually distribute products inside
and outside of the State of Florida that infringe on Scanz’s propriety
intellectual property.” (ECF No. 1, at ¶¶ 21-22; see also ECF No. 45, at 4.)
Outside of these more generic allegations, the complaint focuses almost
exclusively on Sykes, Westphal, and JewMon Enterprises, who the Plaintiff
asserts entered into an licensing agreement with Scanz that gave these
Defendants access to Scanz’s trade secrets which the Defendants then reverse
engineered to the detriment of Scanz in contravention of the alleged terms of
the licensing agreement at issue between the Plaintiff and JewMon. The
complaint also mentions that JewMon and the other entity Defendants shared
corporate addresses and that Sykes had an interest in all of the entity
Defendants, suggesting some relationship between those parties as well. The
complaint, however, provides no facts supporting a conclusion that Bohen
entered into any agreement with Sykes, Westphal, or any other of the
Defendants to steal and profit from Scanz’s trade secret protected information.
As the complaint fails to set forth any non-conclusory allegations connecting
Bohen with the other Defendants and fails to plead other contacts Bohen has
with Florida to support a finding of specific personal jurisdiction, the Court
finds that it lacks specific personal jurisdiction over Bohen.
In light of the above, the Court grants Bohen’s motion to dismiss as the
court lacks personal jurisdiction over Bohen under Florida’s long-arm statute.
(ECF No. 39.) To the extent the Plaintiff asks the Court to take judicial notice
of certain exhibits that the Plaintiff provided in support of the Court’s exercise
of personal jurisdiction over the Defendant Bohen, the Court denies in part
the Plaintiff’s motion in light of its ruling on the Defendant Bohen’s motion to

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dismiss. (ECF No. 46.) As the Plaintiff failed to set forth a prima facie case for
the exercise of personal jurisdiction over Bohen, the Court will not take judicial
notice of exhibits 1-4 which were submitted by the Plaintiff in support of the
Court’s exercise of personal jurisdiction over Bohen. Even if the Court were to
take notice of the materials provided by Scanz, from the descriptions provided
by the Plaintiff, these materials do not provide evidence that Bohen undertook
any agreement with Sykes, Westphal, or any other of the Defendants to support
the Plaintiff’s allegations that Bohen was involved in a civil conspiracy. As the
Plaintiff failed make out a prima facie case for the exercise of personal
jurisdiction over Bohen the Court notes that it also did not take notice of
Bohen’s declaration, which was filed as an exhibit to the Defendant Bohen’s
motion to dismiss.
B. Request for Judicial Notice
The Court turns next to the Defendants’ motion for the Court to take
judicial notice of ten tweets from the twitter account @GetScanz, which were
published between February 2016 and June 2017. (ECF No. 42, at 1.) The
Defendants ask the Court to take judicial notice of these tweets in support of
their claim that certain of the Plaintiff’s claims are time barred.
Taking judicial notice of facts under Federal Rule of Evidence 201 is “a
highly limited process” which “bypasses the safeguards which are involved with
the usual process of proving facts by competent evidence in district court.”
Shahar v. Bowers, 120 F.3d 211, 214 (11th Cir. 1997). Accordingly, a court
may only take judicial notice where the fact in question is not subject to
reasonable dispute because it is either generally known within the territorial
jurisdiction of the Court or capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be questioned. Id. The
Eleventh Circuit noted that the types of facts a court can take judicial notice of
are things like scientific facts, matters of geography, or matters of political
history. Id. Where it is proper for a court to take judicial notice of a fact,
consistent with Federal Rule of Evidence 201(c)(2), the Court must take notice
of such fact where a party requests it and the court is supplied with the
information to be noticed.
While the Defendants cast taking notice of materials on a website as
uncontroversial, the Court finds that is not necessarily the case. In many
cases, it appears where Courts take judicial notice of items such as Facebook
posts, which the Court views as analogous to a tweet on Twitter, the
authenticity of such content is either not in dispute or such internet postings
were expressly incorporated by reference into the Plaintiff’s complaint, neither
of which happened here. See, e.g., Schroeder v. Volvo Grp. of N. Am., LLC, No.

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LACV 20-05127-VAP, 2020 WL 6562242, at *3 (C.D. Cal. Sept. 3, 2020)
(collecting cases where Courts have taken judicial notice of Instagram and
Facebook posts where such materials were “arguably incorporated by
reference” into the plaintiff’s complaint); Young v. Greystar Real Estate
Partners, LLC, No. 3:18-cv-02149-BEN-MSB, 2019 WL 4169889, at *1-2 (S.D.
Cal. Sept. 3, 2019) (taking judicial notice of Instagram and Facebook posts
where the opposing party failed to object to the party’s motion); see also Boesen
v. United Sports Publ’ns, Ltd., 20-CV-1552, 2020 WL 6393010, at *5 n.6
(E.D.N.Y. Nov. 2, 2020) (taking judicial notice of Facebook posts where the
authenticity of such post was not contested). Where Courts take judicial notice
of websites more generally, such websites typically contain information made
available by government entities. See Setai Hotel Acquisition, LLC v. Miami
Beach Luxury Rentals, Inc., No. 16-21296-Civ, 2017 WL 3503371, at * (S.D Fla.
Aug. 15, 2017) (Scola, J.) (noting the lack of a reasonable or understandable
objection to a court taking “judicial notice of information publicly available
from an official government website”); Pyure Brands, LLC v. Nascent Health
Science LLC, No. 18-cv-23357, 2019 WL 7945226, at *3 (S.D. Fla. March 4,
2019) (Ungaro, J.) (standing for the same proposition and collecting cases). 2
The Court has found few cases where Courts have taken judicial notice of nongovernment published internet material. See, e.g., Barron v. Snyder’s-Lance,
Inc., No. 13-62496-Civ, 2015 WL 11182066, at *4 (S.D. Fla. March 20, 2015)
(Lenard, J.) (taking notice of prices contained in internet screen shots “insofar
as they reflect a narrow and specific fact: the price of a certain product on a
certain website on a certain date”). In taking judicial notice of this material, the
Barron court relied on a decision from the Tenth Circuit, O’Toole v. Northrop
Grumman Corp., in which the Tenth Circuit stated it “is not uncommon for
Courts to take judicial notice of factual information found on the world wide
web.” 499 F.3d 1218, 1225 (10th Cir. 2007). While seemingly helpful to the
Defendants, the persuasiveness of the Court’s decision in O’Toole is lessened
significantly as the party in that case, Northrop Grumman, failed to explain to
For instance, the Court finds it appropriate to take judicial notice of certain business
records provided by the Plaintiff relating to JewMon Enterprises, LLC, Millionaire
Publishing LLC, Million Media, LLC, and Millionaire Media I, LLC from the website
search.sunbiz.org, a database maintained by the Florida Department of State, Division
of Corporations. The Court therefore grants in part the Plaintiff’s motion to take
judicial notice (ECF No. 46) with respect to these documents, Exhibits 6-9, though
notes these documents were not necessary to or relied upon by the Court in reaching
the conclusions set forth in this order. With respect to Exhibit 5, the Court denies the
Plaintiff’s request to take judicial notice of screenshots from the Wayback Machine,
consistent with the Court’s prior orders. Setai, 2017 WL 3503371, at *7-8 (declining to
take judicial notice of screenshots from the Wayback Machine).
2

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the Court “why its own website’s posting of historical [information] is
unreliable.” Id. This also is inapplicable to the Defendants’ motion. As the
factual predicate present in O’Toole is lacking here, the Court finds Barron
unpersuasive.
Here, the tweets in question are not incorporated by reference into the
Plaintiff’s complaint, are contested, and are not published on the internet by a
government entity. Similarly, the material the Defendants ask the Court to take
judicial notice of is not from the Plaintiff’s own website. The Defendants
certainly may explore these tweets as they proceed through the discovery
process, but the Court finds that asking the Court to take judicial notice of
these materials at the motion to dismiss stage is improper. Therefore, the Court
denies the Defendants’ motion for the Court to take judicial notice. (ECF No.
42.) Even if the Court were to take judicial notice of these materials, like in
Barron, it would be for the very narrow purpose to take note of the fact that a
tweet was posted on a Twitter account on a certain date and time and not for
the content of that tweet. The Court would not, as the Defendants request, look
at the tweet and “infer Plaintiff’s awareness of the facts giving rise to this
lawsuit and its potential claims against Defendants at the time of the [t]weets.”
(ECF No. 42, at 4.) Accordingly, the Court finds that the Defendants have failed
to argue that the Court should take judicial notice of these materials, and
insofar as the Defendants’ arguments that the Plaintiff’s claims are time
barred, the Court is not moved by those arguments.
C. The Defend Trade Secrets Act (“DTSA”), 18 U.S.C. § 1836, and
the Florida Uniform Trade Secrets Act (“FUTSA”), Fla. Stat. §
688.001, et seq.
In their respective motions to dismiss, both Stockstorade.com and
Westphal and JewMon, Sykes, the Millionaire Publishing entities, and
Millionaire Media argue that the Plaintiff has failed to state a trade secret
misappropriation claim under the DTSA and FUTSA.
The DTSA provides the owner of a trade secret that is misappropriated
with the ability to “bring a civil action . . . if the trade secret is related to a
product or service used in, or intended for use in, interstate or foreign
commerce.” 18 U.S.C. § 1836. A trade secret is broadly defined as “business,
scientific, technical, economic, or engineering information . . . whether tangible
or intangible . . . if the owner thereof has taken reasonable measures to keep
such information secret and the information derives independent economic
value, actual or potential, from not being generally known to, and not being
readily ascertainable through proper means by, another person who can obtain
economic value from the disclosure or use of the information.” 18 U.S.C. §

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1839(3). A trade secret is misappropriated if it is disclosed or used “without
express or implied consent by a person who . . . knew or had reason to know
that the knowledge of the trade secret was . . . acquired under circumstances
giving rise to a duty to maintain the secrecy of the trade secret or limit the use
of the trade secret; or . . . derived from or through a person who owed a duty to
the person seeking relief to maintain the secrecy of the trade secret or limit the
use of the trade secret.” 18 U.S.C. § 1839(5).
To bring a colorable claim under the DTSA, a plaintiff must plausibly
allege that it possessed information of independent economic value, that was
lawfully owned and for which the plaintiff took reasonable measures to keep
secret and the defendant used or disclosed that information despite the
plaintiff’s attempts to maintain its secrecy. Sentry Data Sys., Inc. v. CVS Health,
361 F. Supp. 3d 1279, 1293 (S.D. Fla. 2018) (Bloom, J.).
The FUTSA provides a cause of action for misappropriation of trade
secrets. Sentry Data Sys., Inc., 361 F. Supp. 3d at 1293. In order to prevail on a
FUTSA claim, “‘a plaintiff must demonstrate that (1) it possessed a ‘trade
secret’ and (2) the secret was misappropriated.’” Id. (quoting Yellowfin Yachts,
Inc. v. Barker Boatworks, LLC, 898 F.3d 1279, 1297 (11th Cir. 2018)). For
purposes of the FUTSA, a trade secret is defined as:
information, including a formula, pattern, compilation, program, device,
method, technique, or process that: (a) [d]erives independent economic
value, actual or potential, from not being generally known to, and not
being readily ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use; and (b) [i]s the subject
of efforts that are reasonable under the circumstances to maintain its
secrecy.
Fla. Stat. § 688.002(4). Misappropriation, for purposes of the FUTSA, includes,
among other things, “acquisition of a trade secret by another person who
knows or has reason to know that the trade secret was acquired by improper
means” as well as use of that trade secret “without express or implied consent
by a person who (1) used improper means to acquire knowledge of the trade
secret; or . . . knew or had reason to know that her or his knowledge of the
trade secret was . . . acquired under circumstances giving rise to a duty to
maintain its secrecy or limit its use.” Fla. Stat. 688.002(2). Finally, the FUTSA
defines improper means as “theft, bribery, misrepresentation, breach or
inducement of a breach of a duty to maintain secrecy, or espionage through
electronic or other means.” Fla. Stat. § 688.002(1). Information that is
“generally known or readily accessible . . . cannot qualify for trade secret

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protection.” Am. Red Cross v. Palm Beach Blood Bank, Inc., 143 F.3d 1407,
1410 (11th Cir. 1998). Whether information is a trade secret is a question of
fact, such that at the motion to dismiss stage the movant must present clear
authority that the information identified by a plaintiff is not protected.
Allegiance Healthcare Corp. v. Coleman, 232 F. Supp. 2d 1329, 1335 (S.D. Fla.
2002) (Moreno, J.).
The Defendants argue that the Plaintiff has failed to plead the existence
of a trade secret as the Plaintiff’s broad generalizations “would literally include
everything Scanz has ever owned or created in its corporate history.” (ECF No.
41, at 13; ECF No. 40, at 8 (same).) The Court disagrees and finds, taking the
Plaintiff’s allegations as true, that the Plaintiff has adequately plead the
existence of a trade secret. In its complaint, the Plaintiff states that its
business products are comprised of “technological and device-oriented”
business solutions and platforms utilized by constituents of the securities
industry. (ECF No. 1, at ¶ 2.) The Plaintiff further states that via its licensing
agreement with JewMon that Scanz gave JewMon access to its “licensed
subscription management back-office infrastructure as well as continually
updated versions of the object code of the computer software making up the
core of Scanz[’s] . . . related product offerings.” (ECF No. 26, at ¶ 26.) Far from
vague, these allegations seem to be fairly specific in that they allege the
Defendants stole back-office infrastructure and code that underlie Scanz’s
products. Despite these allegations, the Defendants ask this Court to conclude
the Plaintiff’s complaint is too vague to state a claim with particularity as
Judge Altonaga found in VVIG, Inc. v. Alvarez, No. 18-23109-Civ, 2019 WL
5063441 (S.D. Fla. Oct. 9, 2019) (Altonaga, J.). However, in VVIG, the Court
noted the plaintiff’s allegations were a “‘grab-bag’ of information, so broad and
conclusory to be nonsensical” alleging the stolen trade secret protected
information was comprised of “‘all necessary know-how, standards and
specifications’ . . . including ‘all information concerning the business affairs,
products, marketing systems, technology, customers, end users, financial
affairs, accounting statistical data’ . . . [and] ‘any other propriety and trade
secrets.’” Id. at *3 (emphasis in original). That is not so here. Rather than the
catch-all allegations at issue in VVIG, the Court finds that the Plaintiff’s
allegations with respect to its trade secret protected information are specific
and withstand scrutiny at the motion to dismiss stage.
As a separate basis to attack the Plaintiff’s DTSA and FUTSA claims, the
Defendants also claim that the Plaintiff failed to take reasonable steps to keep
its trade secrets confidential. (ECF No. 40, at 9-10; ECF No. 41, at 14.) As
stated above, both the DTSA and FUTSA require a plaintiff undertake
reasonable efforts to maintain the secrecy of its trade secrets. Here too, the

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Defendants’ arguments fall short. A review of the complaint shows numerous
steps the Plaintiff took to safeguard its trade secrets. For instance, the
licensing agreement, among other obligations, prevented the Defendants from
copying the “look and feel” of Scanz’s program; made clear that Scanz retained
ownership of its assets, including all technology and other intellectual property;
and noted that upon termination JewMon had to return or destroy all
proprietary information it received during the course of its relationship with
Scanz. (See ECF No. 1, at ¶¶ 28-30.) Far from evidencing that the Plaintiff
failed to take steps reasonably maintain the secrecy of its trade secrets, the
complaint sets forth numerous ways the Plaintiff attempted to safeguard and
keep secret its proprietary information.
Finally, the Defendants claim that the Plaintiff failed to allege
misappropriation for purposes of the DTSA and FUTSA. (ECF No. 40, at 10-11;
ECF No. 41, at 14.) Once again, the Court finds that the Defendants’
arguments fall short. In their motions, both sets of Defendants ask the Court to
follow Enteris Biopharma, Inc. v. Clinical Pharmacology of Miami, Inc., where the
Court found a plaintiff failed to allege misappropriation where the plaintiff’s
complaint literally recited the elements of misappropriation as that term is
defined for purposes of FUTSA in a conclusory fashion. No. 14-22770-Civ,
2015 WL 12085848, at *9-10 (S.D. Fla. March 20, 2015). Far from the
threadbare recitations in Enteris, the Plaintiff’s complaint alleges that the
Defendants utilized Scanz’s trade secrets to develop their own “virtually
identical market analysis platform as the one they had access to under the
license agreement” notwithstanding their agreements with the Plaintiff to cease
their use of and destroy Scanz’s information after termination of the licensing
agreement. (ECF No. 44, at 11.) Accordingly, the Court finds that the Plaintiff
has adequately alleged misappropriation.
In light of the above, the Court denies the Defendants’ motions to the
extent they allege the Plaintiff has failed to state a claim under Counts I and II
of the complaint.
D. Preemption Under FUTSA
Having found the Plaintiff’s FUTSA claim survives the Defendants’
motions to dismiss, the Court next turns to the Defendants’ arguments that
certain of the Plaintiff’s claims are preempted by FUTSA. FUTSA preempts
certain “conflicting tort, restitutory, and other laws of this state providing civil
remedies for misappropriation of a trade secret.” Fla. Stat. § 688.008(1).
However, the law does not preempt “[c]ontractual remedies, whether or not
based upon misappropriation of a trade secret” or “[o]ther civil remedies that
are not based upon misappropriation of a trade secret.” Fla Stat. § 688.008(2).

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In determining whether a plaintiff’s FUTSA claims preempt a plaintiff from
pleading a separate, but related claim, the Court must evaluate “whether
allegations of trade secret misappropriation alone comprise the underlying
wrong; if so, the cause of action is barred by § 688.008” Id. at 1335-36. Put
another way, a plaintiff’s separate claim is preempted if there is no “material
distinction between the plaintiff’s FUTSA claim and the other allegation.”
Sentry Data Sys., Inc., 361 F. Supp. 3d at 1294-95.
Here, the Defendants argue that the Plaintiff’s “common law tort claims
are each preempted because they arise out of the core allegation that
Defendants misappropriated the Plaintiff’s trade secrets and used them to
develop the [Stockstotrade.com] website.” (ECF No. 40, at 17; ECF No. 41, at 9).
Accordingly, the Defendants ask the Court to dismiss Counts IV (constructive
fraud), V (breach of fiduciary duty), VI (tortious interference); VII (unjust
enrichment); VIII (conversion); and X 3 (breach of the implied duty of good faith
and fair dealing).
(1)

Counts IV and V

Under Florida law, constructive fraud occurs “when a duty under a
confidential or fiduciary relationship has been abused or where an
unconscionable advantage has been taken.” Am. Honda Motor Co., Inc. v.
Motorcycle Info. Network, Inc., 390 F. Supp. 2d 1170, 1179 (M.D. Fla. 2005).
The fiduciary or confidential relationship for purposes of constructive fraud is
broadly construed and exists where “confidence is reposed by one party and a
trust is accepted by the other, or where confidence has been acquired and
abused.” Id. Constructive fraud “will not lie where the parties are dealing at
arms length because there is no duty imposed on either party to protect or
benefit the other.” Id. The fact that one party places its trust or confidence in
the other “does not create a confidential relationship in the absence of some
recognition, acceptance, or undertaking of the duties of a fiduciary on the part
of the other party.” Id. To prove such a relationship exists, a plaintiff must
plead the existence of something beyond an “ordinary commercial
relationship.” Fin-S Tech, LLC v. Surf Hardware Int’l-USA, Inc., 13-80645-Civ,
2014 WL 12461349, at *9 (S.D. Fla. Jan. 7, 2014) (Ryskamp, J.).
The Defendants argue that this claim is preempted by FUTSA, but the
Court does not agree. Rather, the Court finds that while the Plaintiff’s
constructive fraud claim and FUTSA claim are related, they are not materially
Count X of the Plaintiff’s complaint is in fact Count IX, though the Court will refer to
it as Count X throughout this order for ease. The complaint non-consecutively numbers
its counts, going straight to Count X from Count VIII without inclusion of a Count IX.

3

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indistinguishable. Therefore, the Court finds that Count IV is not preempted
under FUTSA. However, this claim is still subject to dismissal as the Plaintiff
fails to adequately state that the appropriate predicate relationship existed
between the parties. While the Plaintiff claims that a “confidential relationship
ar[ose] from and as a result of the license agreement” such that “each of the
defendants . . . owed fiduciary duties of the highest character to Scanz to . . .
honor the confidentiality, non-disclosure and non-piracy provisions of the
license agreement” the Plaintiff fails to advance any facts allowing the Court to
infer that the parties were dealing anything but at arms length when they
entered into their licensing agreement and therefore it agrees that the parties
had an ordinary business relationship. (ECF No. 1, at ¶ 75); see also Honda,
390 F. Supp. 2d at 1179-80 (finding the lack of a fiduciary or confidential
relationship where a party alleged there was an oral confidentiality agreement
but failed to allege the the opposing party agreed to “undertak[e] . . . the duty
to advise, counsel, protect, or benefit” that party.”). While the Plaintiff placed
confidentiality protections into its license agreement with JewMon, the
Plaintiff’s complaint does not allege that Sykes or JewMon somehow evidenced
it was undertaking “recognition, acceptance, or undertaking of the duties of a
fiduciary on the part of the other party.” Honda, 390 F. Supp. 2d at 1179. That
the Plaintiff simply trusted the Defendants as business partners for the
Plaintiff does not create the predicate relationship necessary for the Plaintiff’s
constructive fraud count to go forward.
As an alternative basis to survive the Defendants’ motions to dismiss, the
Plaintiff argues the fact that the Plaintiff and the Defendants shared in the
“fruits and losses” of their agreement should require the Court to find that a
fiduciary relationship existed between the parties. See Optimum Techs., Inc. v.
Henkel Consumer Adhesives, Inc., 496 F.3d 1231, 1249 (11th Cir. 2007). While
the Plaintiff cites Optimum in support of their contention, Optimum cuts against
the Plaintiff’s arguments. The Plaintiff correctly states that “joint ventures and
legal partnerships” can give rise to a fiduciary duty, but the Plaintiff fails to
allege facts to support a finding that such a relationship was present here.
(ECF No. 44, at 17.) Indeed, as the Eleventh Circuit stated in Optimum, “merely
calling the relationship a joint venture . . . does not make it so.” Id. Whether
such a relationship exists turns on considerations such as whether the
partners share “fruits and losses with an equal right, express or implied, to
direct and control the conduct of the enterprise.” Id. (emphasis added). Rather,
the complaint seems to indicate simply that the parties had a normal business
relationship giving rise to no special duties. Id. Accordingly, the Court also
finds that the Plaintiff has failed to adequately allege a breach of fiduciary duty.

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(2)

Count VI

Turning next to Count VI, the Court notes that, in order to plead a claim
for tortious interference under Florida law, a Plaintiff must plead “(1) the
existence of a business relationship; (2) knowledge of the relationship on the
part of the defendant; (3) an intentional and unjustified interference with the
relationship by the defendant; and (4) damage to the plaintiff as a result of the
breach of the relationship.” Duty Free Americas, Inc. v. Estee Lauder Cos., Inc.,
797 F.3d 1248, 1279 (11th Cir. 2015). The party “allegedly interfered with must
be actual and identifiable, and not just a large group such as the community at
large.” Allegiance Healthcare Corp., 232 F. Supp. 2d 1329 at 1336.
Regardless of whether this claim is preempted by FUTSA, the Court finds
that the Plaintiff has failed to state a claim for tortious interference.
Specifically, the Court finds that the Plaintiff has failed to identify an actual
and identifiable group with whom the Defendants interfered. In the Plaintiff’s
complaint, the Plaintiff states it has “numerous business relationships with
clients in Florida, located throughout the United States and located throughout
the world,” that “[a]t all times material hereto, the [D]efendants named in this
Count had full knowledge of such business relationships” and such Defendants
“have intentionally and unjustifiably interfered with these business
relationships.” (ECF No. 1, at ¶¶ 83-86.) These allegations fail to adequately
plead that the Defendants interfered with an actual and identifiable business
relationship of the Plaintiff. Accordingly, the Court grants the Defendants’
motion to dismiss Count VI of the Plaintiff’s complaint.
(3)

Counts VII and VIII

The Court agrees with the Defendants that Counts VII and VIII of the
Plaintiff’s complaint are preempted by the FUTSA. These counts essentially
allege that the Defendants misappropriated the Plaintiff’s trade secrets and
wrongfully used those trade secrets to their benefit. As the Court finds there is
no material distinction between these claims and the Plaintiff’s FUTSA claim,
the Court dismisses Counts VII and VIII. See, e.g., Gonzalez-Hernandez v.
Orbay, No. 08-21782-Civ, 2009 WL 10668626, at *3 (S.D. Fla. Jan. 15, 2009)
(King, J.) (finding unjust enrichment claim based on “nearly identical
allegations” as preempted by FUTSA); see also Pelfrey v. Mahaffy, No. 1780920-Civ, 2018 WL 3110797, at *3 (S.D. Fla. Feb. 7, 2018) (Middlebrooks, J.)
(finding FUTSA preempted conversion claim as the plaintiff alleged the theft of
the same property that it characterized as constituting a trade secret).

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(4)

Count X

Finally, the Court turns to the Plaintiff’s claim for breach of the implied
duty of good faith and fair dealing. It appears that some of the parties agree
that the Plaintiff’s claim for a breach of the implied duty of good faith and fair
dealing sounds in breach of contract and therefore would not be evaluated for
preemption under FUTSA. Nonetheless, some of the Defendants argue that this
claim is preempted by FUTSA. (ECF No. 40, at 17 n.4.) Regardless of this issue,
the Court agrees that the Plaintiff’s claim for breach of the implied duty of good
faith and fair dealing must be dismissed as the Plaintiff has not asserted a
claim for breach of contract as one of the counts in its complaint. See
Centurion Air Cargo, Inc. v. United Parcel Service Co., 420 F.3d 1146, 1152
(11th Cir. 2005) (“This court has held that a claim for a breach of the implied
covenant of good faith and fair dealing cannot be maintained under Florida law
in the absence of a breach of an express term of a contract.”); see also Alan’s of
Atlanta, Inc. v. Minolta Corp., 903 F.2d 1414, 1429 (11th Cir. 1990) (noting the
implied duty of good faith and fair dealing is “a doctrine that modified the
meaning of all explicit terms in a contract, preventing a breach of those explicit
terms . . . [b]ut it is not an undertaking that can be breached apart from those
terms.”); see also Barnes v. Burger King Corp., 932 F. Supp. 1420, 1437-38
(S.D. Fla. 1996) (noting “Florida contract law recognizes the implied covenant of
good faith and fair dealing in every contract” but the application of the
covenant is “not without limits, and there are many circumstances under
which courts will not allow a party to pursue a cause of action for breach of the
implied covenant” including “where there is no accompanying action for breach
of an express term of the agreement.”). Accordingly, the Court dismisses Count
X of the Plaintiff’s complaint.
For the reasons stated above, the Court grants the Defendants’ motions
to dismiss Counts IV, V, VI, VII, VIII, and X of the Plaintiff’s complaint.
E. Violation of the Lanham Act, 15 U.S.C. § 1125(a)
In Count III of the Plaintiff’s complaint, the Plaintiff asserts the
Defendants have violated the Lanham Act by “issuing, and . . . continuing to
issue, false and misleading statements of fact to the market place while
omitting substantial disclosures the market and Scanz were entitled to know”
including “representations and omissions to the effect that they had lawfully
developed and now owned their own market analysis software” which in the
view of the Plaintiff “creates an untrue impression in the marketplace.” (ECF
No. 1, at ¶ 64.) The Plaintiff alleges that the Defendants “have used in national
and international commerce words, symbols and devices” that have furthered

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the Defendants’ “outright lie that these defendants have themselves lawfully
developed a virtually identical market analysis product line as the market
analysis product offerings sold . . . by Scanz for nearly 20 years.” (ECF No. 1, at
¶ 65.) As a result of this conduct, the Plaintiff alleges the Defendants have
“already caused confusion and deceived the public with respect to the origin,
sponsorship and approval of these defendants’ pirated stock trading platform.”
(ECF No. 1, at ¶ 66.)
The Defendants, in turn, argue that they cannot discern from the
Plaintiff’s complaint whether the Plaintiff is asserting a claim pursuant to
Section 43(a)(1)(A) or Section 43(a)(1)(B) of the Lanham Act. 15 U.S.C. §
1125(a)(1). These provisions provide:
(1) Any person who, on or in connection with any good or services . . .
uses in commerce . . . any false designation of origin, false or
misleading description of act, or false or misleading representation of
fact, which -(A) is likely to cause confusion . . . as to the origin, sponsorship, or
approval of his or her goods, services, or commercial activities
by another person, or
(B) in commercial advertising or promotion, misrepresents the
nature, characteristics, qualities, or geographic original of his or
her or another person’s goods or services, or commercial
activities,
shall be liable in a civil action by any person who believes that he or she
is likely to be damaged by such act.
15 U.S.C. § 1125(a). The Defendants also argue that the Supreme Court’s
opinion in Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003)
defeats any potential Lanham Act claim advanced by the Plaintiff.
The Lanham Act “was intended to make ‘actionable the deceptive and
misleading use of marks,’ and ‘to protect persons engaged in . . . commerce
against unfair competition.’” Dastar, 539 U.S. at 28 (quoting 15 U.S.C. § 1127).
While much of the Lanham Act deals with trademarks and related marks,
Section 43 of the Lanham Act “is one of the few provisions that goes beyond
trademark protection” and creates “a federal remedy against a person who used
in commerce either a false designation of original, or any false description or
representation in connection with any goods or services.” Id. at 29 (internal
quotations omitted). Section 43, however, does not have boundless application
and is not a federal codification of the “overall law of unfair competition . . . but
can only apply to certain unfair trade practices prohibited by its text.” Id. The

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Supreme Court noted in Dastar that Section 43 covers claims relating to “origin
of production as well as geographic origin” which includes “reverse passing off”
claims. Id. at 30. Reverse passing off claims are claims where “a producer
misrepresents someone else’s goods or services as his own.” Id. at 27 n.1.
The Court agrees with the Defendants that the Plaintiff has failed to state
a viable claim under Section 43 of the Lanham Act. In Appjigger GmbH v. BLU
Products, Inc., the Court considered whether a plaintiff properly stated a “false
designation of origin” claim under the Lanham Act where the plaintiff claimed
the defendant violated Section 43 of the Lanham Act by suggesting through its
advertising that the defendant was the “origin” of the plaintiff’s software. No.
15-22313-Civ, 2016 WL 4119720, at *3 (S.D. Fla. March 7, 2016) (Williams,
J.). The Court found the plaintiff failed to state claim because Dastar held that
“origin” for purposes of Section 43 “did not refer to the author of any idea,
concept, or communication embodied in a good, but to the producer of the
tangible good itself.” Id. Applying this principle, the Court noted that the
Eleventh Circuit has “easily disposed of” false designation of origin claims
where plaintiffs have claimed that defendants unlawfully sold items they
created because such claims “do not give rise to a claim under § 1125.” Id.
(discussing Thompkins v. Lil’ Joe Records, Inc., 476 F.3d 1294, 1310 (11th Cir.
2007).
The Plaintiff also fails to state a false advertising claim under the
Lanham Act. Authorship of something is “not a nature, characteristic, or
quality, as those terms are used in Section 43(a)(1)(B) of the Lanham Act.”
Appjigger, 2016 WL 4119720, at *4. A plaintiff “cannot plead around Dastar, by
‘shoe-horn[ing]’ a claim for improper authorship credit into a false advertising
theory.” Id. (quoting Wilchombe v. Teevee Toons, Inc., 515 F. Supp. 2d 1297,
1305 (N.D. Ga. 2007)). The Plaintiff seems to suggest the basis of its false
advertising claim is that the Defendants are promoting their own product while
“failing to properly attribute the source of the underlying technology embodied
in the product” but that is precisely the type of claim that is not actionable
under the Lanham Act. Appjigger, 2016 WL 4119720, at *4.
Finally, to the extent the Plaintiff’s assertions as to the Defendants use of
the “look and feel” of their product attempt to state a claim for trade dress
infringement, the Plaintiff must establish that the product is confusing similar
to its product, the similar features of the two products are primarily nonfunctional, and the plaintiff’s product is distinctive. Id. While the Plaintiff has
plead confusingly similarity, they have not adequately plead any facts
regarding non-functionality. Id. Accordingly, even construing the complaint as
broadly as possible, the Court finds that the Plaintiff has failed to state a claim
under the Lanham Act.

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F. Conspiracy Liability as to the Remaining Defendants
Finally, the Court turns to the Defendants’ arguments that the Plaintiff
has failed to adequately plead civil conspiracy with respect to the remaining
Defendants, The Court set forth the elements for pleading civil conspiracy in
Section 3.A.2, supra.
The Defendants argue in their briefing that the Plaintiff has failed to
adequately plead civil conspiracy because the complaint provides only
conclusory allegations with respect to the various Defendants, and in any case,
there can be no conspiracy based on the intracorporate conspiracy doctrine. In
response, the Plaintiff argues the intracorporate conspiracy doctrine is
inapplicable because each of the corporate defendants are alter egos of Sykes
and moreover that the Plaintiff has sufficiently plead conspiracy based on the
facts alleged in the complaint. In support of its conspiracy allegation, the
Plaintiff states, among other things, that “JewMon, Million Publishing,
Millionaire Media, StocksToTrade, Sykes, [and] Westphal . . . engaged in a civil
conspiracy to misappropriate the Scanz’ Assets and Scanz Trade Secrets . . .
through Sykes’s domination, control and alter ego status over the affairs of
JewMon, Millionaire Publishing, Millionaire Media and StocksToTrade in such
a way as Sykes cooperated with Westphal . . . to formulate and utilize each of
these entities to hide the real party in interest with respect to the object of the
conspiracy and thereby buy themselves enough time to perfect their theft of the
Scanz Assets and Scanz Trade Secrets.” (ECF No. 1, ¶ 39.)
At the outset, while certain of the Defendants allege the Plaintiff’s
conspiracy claims must meet the heightened pleading standards of Federal
Rule 9(b) on the basis that they sound in fraud, the Court does not agree. See,
e.g., Lobo Capital Partners, LLC v. Forte, No. 8:12-cv-2029-T-33AEP, 2013 WL
1279009, at *3 (S.D. Fla. March 28, 2013) (declining to apply heightened
pleading standards to civil conspiracy allegations in the context of a claim
regarding theft and use of trade secrets). As the Plaintiff need not satisfy
heightened pleading standards, the Court agrees with the Plaintiff that at this
early stage of the litigation, the Plaintiff has sufficiently plead conspiracy with
respect to the remaining Defendants. Unlike the conclusory allegations with
respect to Defendant Timothy Bohen, the complaint states that Defendants
Westphal and Sykes are the members of JewMon and notes that JewMon,
Millionaire Publishing, Millionaire Media, and Stockstotrade.com all share a
corporate office address in Florida, with at least Sykes having some interest in
each of these entities. (ECF No. 1, at ¶¶ 4-14.) Notably, with respect to Timothy
Bohen, the complaint failed to state in a non-conclusory way the existence of a
relationship between Bohen and the other Defendants. These allegations,

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together with other allegations pertaining to these Defendants set forth in the
complaint, are sufficient to support the Plaintiff’s claim of civil conspiracy.
While the
While the Defendants correctly note that the intracorporate conspiracy
doctrine “holds that acts of corporate agents are attributed to the corporation
itself, thereby negating the multiplicity of actors necessary for the formation of
a conspiracy” McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1036 (11th
Cir. 2000), the Defendants fail to acknowledge that while Westphal and Sykes
may be members of JewMon Enterprises, LLC, the Defendants do not allege
JewMon, and the other corporate entity Defendants are related. See Lobo
Capital Partners, 2013 WL 1279009, at *3. Accordingly, the Plaintiff’s
allegations as to civil conspiracy are not subject to dismissal under the
intracorporate conspiracy doctrine.
4. Conclusion
In sum, the Court grants Defendant Timothy Bohen’s motion to dismiss
based on lack of personal jurisdiction. (ECF No. 39.) The Court grants in part
and denies in part Stockstotrade.com Inc and Zachary Westphal’s (ECF No.
40); and JewMon Enterprises, LLC, Timothy Sykes, Millionaire Publishing, LLC
(a Florida limited liability corporation), Million Publishing, LLC (a Colorado
limited liability corporation), and Millionaire Media, LLC’s (ECF No. 41)
motions to dismiss. Specifically, the Court grants the remaining Defendants’
request to dismiss Counts III through X of the Plaintiff’s complaint. However,
the Court denies the Defendants’ request for the Court to dismiss Counts I and
II of the Plaintiff’s complaint.
The Court also notes that both parties filed motions for the Court to take
judicial notices of documents including tweets, YouTube videos, and various
other documents, including corporate documents from a website maintained by
the Florida Department of State, Division of Corporations. For reasons stated
above, the Court denies the Defendants’ motion to take judicial notice (ECF
No. 42.) The Court also grants in part and denies in part the Plaintiff’s
motion to take judicial notice. (ECF No. 46.) While the Court granted the
Plaintiff’s request to take judicial notice of Exhibits 6-9, the Court’s decision
did not rely in whole or in part on these documents.
Finally, the Court notes that its practice in cases with multiple plaintiffs
or defendants is for the parties to file joint motions and consolidated
responses and replies unless there are clear conflicts of position. If such a
conflict of position exists, the parties must explain the conflicts in their
separate filings. All future filings must comply with this practice.

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Done and ordered at Miami, Florida on January 6, 2021.
________________________________
Robert N. Scola, Jr.
United States District Judge