Skypoint Advisors, LLC. v. 3 Amigos Productions LLC.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

SKYPOINT ADVISORS, LLC.,

Plaintiff/Counter

Defendant,

v. Case No: 2:18-cv-356-JES-MRM

3 AMIGOS PRODUCTIONS LLC.,

BLACKBURNSTEELE LLC., ISSA

ZAROUI, and MARK CRAWFORD,

Defendants/

Counterclaimants.

3 AMIGOS PRODUCTIONS LLC.,

BLACKBURNSTEELE LLC., ISSA

ZAROUI, and MARK C CRAWFORD,

Third-Party

Plaintiffs,

v.

DENIS DRENI,

Third-Party

Defendant.

OPINION AND ORDER

This action comes before the Court on review of the following

motions: (1) Counter-Defendant Skypoint Advisor LLC’s (Skypoint)

Partial Motion for Summary Judgment (Doc. #239) as to the

Counterclaim; and (2) Third-Party Defendant Denis Dreni’s (Dreni)

Motion for Summary Judgment (Doc. #241) as to the claims made in

the Third-Party Complaint. Counterclaimants/Third-Party

Plaintiffs 3 Amigos Production LLC (3 Amigos), BlackburnSteele LLC

(BlackburnSteele), Issa Zaroui (Zaroui), and Mark Crawford

(Crawford) (collectively, Counterclaim Plaintiffs) filed a

combined Response in Opposition to the motions (Doc. #251).

Skypoint and Dreni filed Replies. (Docs. ## 260, 261.) For the

reasons set forth, both motions are denied.

I.

This case stems from a dispute over monies provided by

Skypoint to 3 Amigos for the production and release of a movie.

Dreni is the managing member of Skypoint; BlackburnSteele, Zaroui,

and non-party Chad Pittman are the members of 3 Amigos; and

Crawford is the sole member of BlackburnSteele.

The operative Complaint (Doc. #93) asserts the following

claims: (1) violation of § 10(b) of the Securities Exchange Act of

1934 and corresponding Rule 10b-5 against all Counterclaim

Plaintiffs; (2) violation of Florida securities law against all

Counterclaim Plaintiffs; (3) fraud against all Counterclaim

Plaintiffs; (4) violation of the Florida Deceptive and Unfair Trade

Practices Act against all Counterclaim Plaintiffs; (5) breach of

contract against 3 Amigos only; and (6) breach of fiduciary duty

against 3 Amigos only. In response, Counterclaim Plaintiffs assert

a Counterclaim against Skypoint for: (1) defamation, brought by

all Counterclaim Plaintiffs; (2) violation of the Stored

Communications Act, brought by 3 Amigos and Zaroui; and (3)

tortious interference with contract, brought by 3 Amigos only.

(Doc. #152.) Counterclaim Plaintiffs assert the same three claims

against Dreni in a Third-Party Complaint. (Id.)

The following basic facts appear to be undisputed: On or about

February 2017, Skypoint and 3 Amigos entered into a Film Financing

Agreement (the “Agreement”). (Doc. #93-1.) The Agreement was

related to 3 Amigos’ production, ownership, and exploitation of a

movie based on a script known as “Lazarat Burning” (the Movie).

(Id.) Pursuant to the Agreement, Skypoint would provide $50,000

to 3 Amigos. (Id. § 2.) The Agreement stated that, “instead of

receiving interest on the monies loaned [Skypoint] has elected to

receive a proportional profit distribution of three point seven

percent (3.7%) share of the 60% investment share of the profit as

describe in Section 3.c.” (Id. § 2.1.) Distributions under the

Agreement were to occur as follows: (1) repaying front-end

deferrals of the costs of the project, after any loans (including

Skypoint’s loan); (2) repaying any investor principals, on a pro-

rata basis; and (3) distributing the remaining amounts, 60% to any

investors and Skypoint based on their percentage of investment and

40% to 3 Amigos. (Id. § 3.)

The parties generally agree that a movie went into filming

and production, and that William Kaufman (Kaufman) was hired to

direct and produce the Movie. The parties’ conduct and

relationship following the Agreement are contested. The Court

will discuss the contested background for each claim and the

parties’ positions, as necessary, infra.

II.

Summary judgment is appropriate only when the Court is

satisfied that “there is no genuine dispute as to any material

fact and that the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). “An issue of fact is ‘genuine’ if

the record taken as a whole could lead a rational trier of fact to

find for the nonmoving party.” Baby Buddies, Inc. v. Toys “R” Us,

Inc., 611 F.3d 1308, 1314 (11th Cir. 2010). A fact is “material”

if it may affect the outcome of the suit under governing law.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The

moving party bears the initial burden of showing the court, by

reference to materials on file, that there are no genuine issues

of material fact that should be decided at trial. Hickson Corp.

v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004)

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “When

a moving party has discharged its burden, the non-moving party

must then ‘go beyond the pleadings,’ and by its own affidavits, or

by ‘depositions, answers to interrogatories, and admissions on

file,’ designate specific facts showing that there is a genuine

issue for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d

590, 593–94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324).

“A court must decide ‘whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.’”

Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th

Cir. 2004) (quoting Anderson, 477 U.S. at 251).

In ruling on a motion for summary judgment, the Court views

all evidence and draws all reasonable inferences in favor of the

non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007); Tana

v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010). “‘[I]f

reasonable minds might differ on the inferences arising from

undisputed facts, then the court should deny summary judgment.’”

St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198

F.3d 815, 819 (11th Cir. 1999) (quoting Warrior Tombigbee Transp.

Co. v. M/V Nan Fung, 695 F.2d 1294, 1296-97 (11th Cir. 1983)

(finding summary judgment “may be inappropriate even where the

parties agree on the basic facts, but disagree about the factual

inferences that should be drawn from these facts”)). However, if

the non-movant’s response consists of nothing “more than a

repetition of his conclusional allegations,” summary judgment is

not only proper, but required. Morris v. Ross, 663 F.2d 1032, 1034

(11th Cir. 1981).

III.

A. Defamation Claim

All Counterclaim Plaintiffs assert a defamation claim against

Skypoint and Dreni. (Doc. #152, p. 32.) In this claim,

Counterclaim Plaintiffs contend that Dreni sent messages to non-

parties with false and defamatory statements about them, causing

them “disruptions in their personal lives and business ventures.”

(Doc. #152, pp. 32-33.) Only Dreni moves for summary judgment on

this claim. (Doc. #241, p. 6.)

Defamation under Florida law requires five elements:

(1) publication; (2) falsity; (3) the

statement was made with knowledge or reckless

disregard as to the falsity on a matter

concerning a public official, or at least

negligently on a matter concerning a private

person; (4) actual damages; and (5) the

statement must be defamatory.

Turner v. Wells, 879 F.3d 1254, 1262 (11th Cir. 2018) (citing Jews

For Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008)). Dreni

challenges the evidentiary support for the first and fourth

elements, arguing that Counterclaim Plaintiffs cannot provide any

admissible evidence of publication or damages. (Doc. #241, p. 6.)

Dreni states that Counterclaim Plaintiffs provided no

relevant discovery related to their defamation claim (id. p. 7),

and that while Zaroui testified during his deposition about losing

work in California because of Dreni’s defamatory statements, he

refused to elaborate further due to a non-disclosure agreement.

(Id. p. 8.) Contrary to Fed. R. Civ. P. 56(c)(1), Dreni provides

no citation to the record supporting either argument. (Id. pp. 7-

8.) In their response, Counterclaim Plaintiffs cite to two

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conclusory affidavits , as well as emails made by Dreni threatening

to defame them with potential sales companies and investors. (Doc.

2

#251-1, p. 3; Doc. #251-3, ¶ 3; Doc. #251-4, ¶ 3.) Neither the

motion nor the response shows that any party is entitled to

judgment as a matter of law based on undisputed material facts.

Dreni’s motion on the defamation claim is denied.

B. Stored Communications Act Claim

Zaroui and 3 Amigos assert a Stored Communications Act (SCA),

18 U.S.C. § 2701, et seq., claim against Skypoint and Dreni. (Doc.

#152, ¶ 77.) In this claim, Zaroui and 3 Amigos allege that

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Crawford’s affidavit states: “I believe Dreni contacted

third parties, defaming me and interrupting my work including

renewal of my contract as an Independent Board of Director of the

American Bank of Investments and Chairman of its Audit Committee.”)

(Doc. #251-3.) Zaroui’s affidavit states: “I believe Dreni

contacted third parties, defaming me and interrupting my work in

Albania including on a film studio.” (Doc. #251-4.)

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Counterclaim Plaintiffs also cite to text message chains

(Doc. #251-2) which are in a foreign language. Instead of

providing a certified translation, Counterclaim Plaintiffs state

that “translators and live witnesses are capable of being produced

at trial.” (Doc. #251, p. 1. E.g., Doc. #251-1, p. 1; Doc. 251-

2.) This is insufficient. “‘It is clear, to the point of perfect

transparency, that federal court proceedings must be conducted in

English.’” Rivas-Montano v. United States, No. 803CR47T24EAJ,

2006 WL 1428507, at *1 (M.D. Fla. May 22, 2006) (quoting United

States v. Rivera-Rosario, 300 F.3d 1, 5, 7 n. 4 (1st Cir. 2002)

(noting “well-settled rule that parties are required to translate

all foreign language documents into English”)). Accordingly, the

Court will not consider any exhibits in a foreign language as part

of the summary judgment record which do not include a translation.

Id. (citing Lopez-Carrasquillo v. Rubianes, 230 F.3d 409, 413-14

(1st Cir. 2000) (declining to consider as part of summary judgment

record a deposition excerpt in Spanish, where party submitting

excerpt failed to provide English translation)).

Skypoint/Dreni accessed Zaroui’s email, which is used for 3 Amigos

business purposes, without authorization, causing Zaroui and 3

Amigos damages. (Id. ¶¶ 81-84.) 3 Amigos and Zaroui allege that

Dreni obtained a copy of Zaroui’s passport and the names and

contact information of business contacts, which evidences the

illegal access. (Id.) Both Skypoint and Dreni seek summary

judgment on this claim.

To state a claim under the SCA, an aggrieved party must

establish that the defendant (1) intentionally accessed without

authorization a facility through which an electronic communication

service is provided, or intentionally exceeded an authorization to

access that facility; and (2) obtained, altered, or prevented

authorized access to a wire or electronic communication while it

was in electronic storage in such system. Snow v. DirecTV, Inc.,

450 F.3d 1314, 1321 (11th Cir. 2006)); Vista Mktg., LLC v. Burkett,

812 F.3d 954, 964 (11th Cir. 2016) (holding that unauthorized

accessing of emails stored by an online host violates the Stored

Communications Act).

Both Dreni and Skypoint argue that Zaroui and 3 Amigos have

produced no evidence, other than Zaroui’s own speculation, that

could show that Zaroui’s email was accessed without authorization.

(Doc. #239, pp. 8-18; Doc. #241, pp. 11-17.) Dreni and Skypoint

cite Dreni’s own declaration, averring that he never accessed

Zaroui’s email. (Doc. 238-31.) Skypoint also cites to a passage

in Zaroui’s deposition, (Doc. #239, p. 18):

Q: Mr. Zaroui, there’s some counterclaims that

were brought against Skypoint in the lawsuit

by yourself and 3 Amigos and Mr. –

A: That will be discussed with the lawyer

after you finish giving her some time to talk

to us.

Q. So but you’ve brought them against

Skypoint, okay, and my question –

A: And Dreni personally.

Q: All right. What –

A: Skypoint didn’t hack my emails, sir.

Dreni, himself hacked my emails, okay.

Skypoint is not calling producers that I work

with badmouthing me. Dreni is calling them.

Skypoint is not having – doing my life

bad. Dreni is having my life – my professional

life like from bad to worse because it’s like

– I don’t know.

He’s like a big baby. He goes around

trying to check on Facebook, trying to

investigate where I’m going, who I’m talking

to so he can send – when this – here, I’ll

quote for you the email thread.

He sends from some email address,

mcos@grove28, you know, to everybody I work

with at every given moment badmouthing me, you

know, saying I’m scum, you know, I money

launder, et cetera, et cetera, …

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(Doc. 238-28, p. 14.) Skypoint contends that Zaroui’s admission

that “Skypoint didn’t hack [his] emails,” puts any alleged

misconduct solely on Dreni, and summary judgment in its favor is

proper. (Doc. #239, p. 18; Doc. #260, pp. 2-3.)

In their collective response to Skypoint and Dreni’s motions,

3 Amigos and Zaroui cite the following evidence to support the

claim: (1) a November 30, 2018 notice that Zaroui’s email account

had been accessed by an unknown source (Doc. #251-5); (2) a

threatening text message from Dreni to Zaroui with sensitive

information about investors from various locations (Doc. #251-6);

(3) a text message exchange between Dreni and Balsamo, discussing

Zaroui’s alleged email hack (Doc. #251-7); and (4) a February 7,

2018 text from Dreni to Crawford, attaching a copy of Zaroui’s

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passport (Doc. #251-8). 3 Amigos and Zaroui do not address

Zaroui’s deposition testimony or his statement that “Skypoint

didn’t hack my email.”

Based on the foregoing, Dreni and Skypoint have not carried

their burden of showing the Court that there are no genuine issues

3

Skypoint only provided select pages from Zaroui’s

deposition, and did not provide the page before or after quoted

sections to provide context.

4

Dreni does not dispute that he sent the text message to

Crawford with Zaroui’s passport. The parties do, however, hotly

contest how Dreni got a copy of the passport, demonstrating another

dispute of fact and making summary judgment inappropriate. (Doc.

#241, pp. 14-16; Doc. #251.)

of material fact that should be decided at trial. A reasonable

factfinder could view Zaroui and 3 Amigos’ exhibits, weigh Dreni

and Zaroui’s testimony, and infer that Zaroui’s email account was

illegally accessed by Dreni.

The Court is also not persuaded that Zaroui’s statement that

“Skypoint didn’t hack [his] email,” releases Skypoint of

liability. The claim, as alleged, is asserted against Skypoint

and Dreni jointly and severally. Zaroui’s deposition testimony is

clear that Zaroui believes Dreni accessed his email. Based on the

record, the Court cannot say with any certainty that Dreni’s

alleged actions were not on behalf of Skypoint as managing member,

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nor do the parties discuss this issue.

Accordingly, Skypoint and Dreni’s motions on the SCA claim

are denied.

C. Tortious Interference with Contract Claim

3 Amigos asserts a tortious interference with contract claim

against Skypoint and Dreni, arising from Skypoint and Dreni’s

alleged interference with Kaufman’s post-production of the Movie.

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“Generally, managing members, officers, directors and

shareholders are shielded from personal liability arising by

virtue of their relationship to the corporate entity.” NuVasive,

Inc. v. Absolute Med., LLC, No. 617CV2206ORL41GJK, 2019 WL 1468522,

at *4 (M.D. Fla. Feb. 11, 2019) (quotation omitted). Dismissing

the SCA claim against Skypoint at this time could also lead to

inconsistency given Dreni’s potential shield by Skypoint, as the

corporate entity.

(Doc. #152, p. 35.) At the pleading stage, Skypoint moved to

dismiss this claim, presenting, in essence, the same documents,

declarations, and arguments as Skypoint and Dreni do now. (Doc.

6

#136.) Skypoint and Dreni cite the same declaration from Kaufman.

(Id. pp. 15-18). The Court has already discussed the disputed

nature of Kaufman’s declaration. (Doc. #151, p. 13.) The Court

stated in that Order:

To the extent Skypoint suggests the Court

should grant summary judgment on the tortious

interference claim based on the declaration,

the Court finds there is a genuine dispute of

material fact precluding such an outcome. See

Fed. R. Civ. P. 56(a).

(Doc. #151, p. 14.) After review of the summary judgment record,

genuine issues of material fact still exist. Skypoint and Dreni’s

motions are denied.

Accordingly, it is now

ORDERED:

1. Dreni’s motion for summary judgment (Doc. #241) is

DENIED.

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In that Order, the Court considered Counterclaim Plaintiffs

first Counterclaim, which asserted a tortious inference with

contract claim on behalf of all Counterclaim Plaintiffs. The Court

dismissed without prejudice, with leave to amend, the claim as it

related to Zaroui, Crawford, and BlackburnSteele because the three

were not a party to the alleged contract. (Doc. #122; Doc. #151.)

The operative Counterclaim limited the claim to 3 Amigos only;

however, the alleged underlying facts remain the same. (Compare

Doc. #122 p. 25-26 with Doc. #152, p. 30-31.)

2. Skypoint’s motion for summary judgment (Doc. #239) is

DENIED.

DONE and ORDERED at Fort Myers, Florida, this 27th day

of December, 2021.

= kibok

J E. STEELE

SENIOR UNITED STATES DISTRICT JUDGE

Copies:

Counsel of Record