Spimerica Access Solutions, LLC v. Palazzani Industrie, S.P.A. et al

Filing 81

ORDER denying 62 Application for Preliminary Injunction. Signed by Senior District Judge Robert N. Scola, Jr. See attached document for full details. (abo)

United States District Court
for the
Southern District of Florida
Spimerica Access Solutions, LLC,
Plaintiff,
v.
Palazzani Industrie, S.P.A. and
others, Defendants.

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Civil Action No. 23-23222-Civ-Scola
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Order Denying Preliminary Injunction
This matter is before the Court upon the Plaintiff Spimerica Access
Solutions, LLC’s (“Spimerica”) emergency ex parte application for a temporary
restraining order and preliminary injunction. (Appl., ECF No. 62.)
On September 14, 2023, the Court entered an order granting Spimerica’s
emergency ex parte application for a temporary restraining order and set a
hearing on Spimerica’s request for a preliminary injunction. (See ECF Nos. 23,
29, 36.) Due to the scope of the evidence and arguments presented, the
preliminary injunction hearing was split into two days, with the first part
taking place on October 10, 2023 (ECF No. 49), and the second taking place on
November 13, 2023 (ECF No. 80). Counsel for Spimerica and the Defendants
Palazzani Industrie, S.P.A. (“Palazzani”), Spider Atlantic Corp. (“Spider”), Davide
Palazzani, Paola Palazzani, Francesco Zola, and Cristian Marchina (collectively,
the “Palazzani Defendants”) attended the hearing and presented evidence on
both days. 1
The Court has carefully reviewed the application, the pertinent portions
of the record, and is otherwise fully advised in the premises. In addition, the
Court has carefully considered the evidence and arguments presented at the
preliminary injunction hearing. For the reasons set forth below, the Court
denies Spimerica’s application for a preliminary injunction. (Appl., ECF No.
62.)
1. Background
On April 28, 2021, Spimerica and Palazzani entered into an exclusive
distribution agreement (“EDA”) pursuant to which Spimerica became the
1

Counsel for the Defendant Benjamin Lee Taft (“Taft”) was also present at the hearing but only
sought to observe the proceedings. (ECF No. 49.) While Spimerica initially sought injunctive
relief as to Taft as well, Spimerica and Taft have since filed a stipulation withdrawing and
resolving Spimerica’s request for injunctive relief as to Taft individually. (ECF No. 21.)

exclusive distributor of Palazzani lift machines—complex arial lifts used in
construction and other industries—throughout North America. (Compl. ¶ 1,
ECF No. 1; Emerg. Appl. 2, ECF No. 20.) In short, the parties’ contractual
relationship soured and Spimerica instituted the instant action seeking
injunctive and other relief against the Defendants. Specifically, Spimerica’s
complaint brings nine claims involving the Palazzani Defendants:
• tortious interference with contract against the Palazzani
Defendants (Count One);
• tortious interference with contract against Spider, Paola Palazzani,
Davide Palazzani, Francesco Zola, and Cristian Marchina (Count
Two);
• breach of contract and the implied covenant of good faith and fair
dealing against Palazzani (Count Three);
• misappropriation of trade secrets in violation of the Defend Trade
Secrets Act against the Palazzani Defendants and Taft (Count
Four);
• violation of the Florida Uniform Trade Secrets Act against the
Palazzani Defendants and Taft (Count Five);
• breach of fiduciary duties and aiding and abetting against the
Palazzani Defendants and Taft (Count Six);
• unfair competition against the Palazzani Defendants and Taft
(Count Eight);
• civil conspiracy against the Palazzani Defendants and Taft (Count
Nine); and
• declaratory relief against Palazzani and Taft (Count Eleven).
(See generally id.)
On August 31, 2023, Spimerica filed an emergency motion for a
temporary restraining order and preliminary injunction, asking the Court to
enjoin the Defendants from engaging in any conduct directed at establishing
the new competing business venture. (ECF Nos. 11–17.) However, the Court
denied the motion upon finding it deficient for multiple reasons. Specifically,
the Court explained that the motion failed to comply with the requirements of
Southern District of Florida Local Rule 7.1(d)(1), and that it failed to properly
address the notice requirements of Federal Rule of Civil Procedure 65.
On September 13, 2023, Spimerica renewed its request by filing the
emergency ex parte application for a temporary restraining order and
preliminary injunction that is the subject of the instant order. As noted above,
on September 14, 2023, the Court granted Spimerica’s application for a
temporary restraining order and set a hearing on Spimerica’s request for a

preliminary injunction. (See ECF Nos. 23, 29, 36.) On October 6, 2023, the
Palazzani Defendants filed a responsive motion to dissolve the temporary
restraining order and in opposition to the entry of a preliminary injunction.
(Mot., ECF No. 46.)
The preliminary injunction hearing took place on October 10, 2023, (ECF
No. 49) and on November 13, 2023 (ECF No. 80). At the hearing, the Court
heard arguments from both sides, as well as extensive testimony from Vlad
Sidoren, Spimerica’s Manager, and Francesco Zola, Palazzani’s Chief Operating
Officer and Spider’s Secretary.
2. Legal Standard
A preliminary injunction is "an extraordinary and drastic remedy not to
be granted unless the movant clearly" meets the burden of persuasion as to the
four requisite elements. All Care Nursing Serv., Inc. v. Bethesda Mem'l Hosp.,
Inc., 887 F.2d 1535, 1537 (11th Cir. 1989). "Because a preliminary injunction
is an extraordinary and drastic remedy, its grant is the exception rather than
the rule, and the Plaintiff must clearly carry the burden of persuasion." Siegel
v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (internal quotations omitted).
To obtain a preliminary injunction, the movant must show: "(1) substantial
likelihood of success on the merits; (2) irreparable injury will be suffered unless
the injunction issues; (3) the threatened injury to the movant outweighs
whatever damage the proposed injunction may cause the opposing party; and
(4) if issued, the injunction would not be adverse to the public interest." All
Care Nursing, 887 F.2d at 1537. Ultimately, “[t]he grant or denial of a
preliminary injunction is a decision within the discretion of the district court."
Carillon Imps., Ltd. v. Frank Pesce Int'l Grp., Ltd., 112 F.3d 1125, 1126 (11th
Cir. 1997).
3. Analysis
Here, the Court’s analysis starts and ends with the first element of the
preliminary injunction inquiry. In short, because Spimerica has not met its
burden of demonstrating a substantial likelihood of success on the merits, the
Court must deny its request for a preliminary injunction at this stage.
In its application, Spimerica explains that on September 11, 2023,
Spimerica received a notice from Palazzani in which the latter threatened to
terminate the EDA and begin selling its products directly to customers in North
America, unless Spimerica confirmed in writing by September 14, 2023, that it
will have staff and employees as allegedly required under the EDA. (Appl. 2–4,
ECF No. 62; Cure Notice, ECF No. 62-4.) Furthermore, Palazzani’s notice also

demanded that Spimerica, by September 14, 2023, confirm in writing that it
will pay deposits on certain products by September 18, 2023, but then adds
that
[e]ven if Spimerica confirms that it will take delivery and pay in full
for all of the machines identified [t]herein, Palazzani will deem
Spimerica’s failure and/or refusal to confirm [that Spimerica has the
staff to sell Palazzani Products] as evidence of Spimerica’s inability
to perform its obligations to Palazzani under the EDA and will
exercise its rights under the EDA and applicable law, including, but
not limited to, termination.
(Cure Notice at 3.) Spimerica posits that, since Palazzani itself has been
dismantling Spimerica’s sales department by soliciting them and causing them
to leave their employment, it will be nearly impossible for Spimerica to comply
with Palazzani’s condition. In other words, even if Spimerica pays the disputed
amounts claimed by Palazzani, it will still be defaulted because it cannot
possibly hire staff to replace the employees that left the company at Palazzani’s
prodding and solicitations.
Spimerica’s application concludes by arguing that it now stands to suffer
immediate and irreparable harm if the Defendants are not enjoined from
terminating the EDA and using Spimerica’s trade secrets to compete with
Spimerica because it will lose its entire business to the Defendants and will no
longer be the exclusive distributor of Palazzani products in North America.
(Appl. 4, ECF No. 62.) In short, if Palazzani proceeds as threatened in its
notice, then Spimerica will have lost its entire business as the exclusive
distributor of Palazzani products in North America, and any goodwill among
customers, and the value the customer list and pricing data once had, will be
lost completely. (Id. at 2.)
In their responsive motion to dissolve the temporary restraining order
and in opposition to the entry of a preliminary injunction, the Palazzani
Defendants ague, among other things, that Spimerica’s application for
injunctive relief presents the Court with a one-sided, misleading account of a
commercial dispute in an attempt to avoid performing under the EDA and to
restrict Palazzani from exercising its contractual rights. (Mot. 2–4, ECF No. 46.)
Indeed, the Palazzani Defendants are adamant that Spimerica’s
mismanagement of its business and various breaches of the EDA are what
generated the exodus of its key employees and, ultimately, the parties’
disagreements.
After carefully considering the parties’ arguments and evidence presented
at the preliminary injunction hearing, the Court concludes that at this stage it
is impossible to say that Spimerica has a substantial likelihood of succeeding

on the merits of its claims. Mr. Sidoren and Mr. Zola’s testimonies at the
hearing addressed practically all aspects of the parties’ dispute—from the
specific timeline in which key Spimerica employees left the company to the
details of Spimerica’s alleged outstanding obligations under the EDA. Critically,
however, Mr. Sidoren and Mr. Zola’s testimonies significantly conflict on key
aspects of the claims at issue, and the Court did not find one of the witnesses
to be more credible than the other. In short, the principals’ testimonies set out
a narrative in which both sides potentially were involved in breaches of the
EDA, such that neither is clearly in the right here.
As just one example, at the hearing, Spimerica focused its likelihood of
success arguments on its claim for tortious interference with contract and
business relations against Spider, Paola Palazzani, Davide Palazzani, Francesco
Zola, and Cristian Marchina (Count Two). In that claim, Spimerica essentially
alleges that these Defendants sought to bring about the end of Spimerica’s
contractual relationship with Palazzani by, among other things,
contacting Spimerica’s employees and former employees to obtain
Confidential Information about Spimerica’s operations, directing
them not to disclose their communications to Spimerica, spreading
false rumors to employees that Spimerica would be out of business
soon, and soliciting Spimerica’s employees to work for and
collaborate with Paola Palazzani, Davide Palazzani, Francesco Zola,
and Cristian Marchina in establishing and organizing a new
distribution business in North America[.]
(Second Am. Compl. ¶ 146, ECF No. 63.) However, the Palazzani Defendants
have presented evidence that many of the employees allegedly contacted by
them had either already left Spimerica or had their own doubts about
continuing with the company. (See Mot. 8–9, ECF No. 46.)
In short, given the conflicting evidence presented in support of the
parties’ respective positions, and in particular at the preliminary injunction
hearing, the Court is not able to conclude that Spimerica has met its burden of
showing a substantial likelihood of success on the merits.
4. Conclusion
For the foregoing reasons, the Court denies Spimerica’s application for a
preliminary injunction. (Appl., ECF No. 62.)
Done and ordered in Miami, Florida, on November 14, 2023.
________________________________
Robert N. Scola, Jr.
United States District Judge