Florida Beauty Flora, Inc. v. Pro Intermodal L.L.C.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-20966-CIV-ALTONAGA/Goodman

FLORIDA BEAUTY FLORA INC.,

Plaintiff,

v.

PRO INTERMODAL L.L.C., et al.,

Defendants.

________________________________/

ORDER

THIS CAUSE came before the Court on Defendants, Pro Intermodal L.L.C., Pro Cold

Storage, Inc., Victor Veliz, and Gustavo Perez’s1 Renewed and Supplemented Motion for

Summary Judgment [ECF No. 104], filed on April 13, 2021. Plaintiff, Florida Beauty Flora Inc.,

filed a Response in Opposition [ECF No. 108]; to which Defendants filed a Reply [ECF No. 111].

The Court has carefully considered the Complaint [ECF No. 1], the parties’ written submissions,2

the record, and applicable law. For the following reasons, the Motion is granted in part and denied

in part.

I. BACKGROUND

This case involves a dispute between an employer and its former employee who left to join

1 Defendants are Pro Intermodal L.L.C. (“Intermodal”); Pro Cold Storage, Inc. (“Pro Cold”); Victor Veliz

(“Veliz”; collectively, the “Intermodal Defendants”); and Gustavo Perez (“Perez”; together with the

Intermodal Defendants, “Defendants”).

2 The parties’ factual submissions include: Defendants’ Supplemented Statement of Undisputed Material

Facts in Support of their Renewed and Supplemented Motion for Summary Judgment (“Defs.’ SOF”) [ECF

No. 105] with supporting exhibits (see [ECF Nos. 104-1, 105-1–105-10, 110-1]); Plaintiff’s Statement of

Material Facts in Opposition to Defendants’ Motion for Summary Judgment (“Pl.’s Resp. SOF”) (see [ECF

No. 109] 1–10), and Plaintiff’s Additional Material Facts (“Pl.’s SOF”) (see id. 10–12) with supporting

exhibits (see [ECF Nos. 109-1–109-7]); and Defendants’ Reply Statement of Undisputed Material Facts in

Support of their Motion for Summary Judgment (“Defs.’ Reply SOF”) [ECF No. 112].

a competitor. (See generally Compl.). Plaintiff is a Florida corporation with its principal place of

business in Miami, Florida. (See id. ¶ 3). Intermodal is a Florida limited liability company with

its principal place of business in Hialeah, Florida (see id. ¶ 4); Pro Cold is a Florida corporation

with its principal place of business in Miami, Florida (see id. ¶ 5). Perez and Veliz are residents

of Miami-Dade County, Florida. (See id. ¶¶ 6–7).

The facts. Plaintiff is a refrigerated carrier providing transportation, warehouse, and

logistical services to clients in the floral and perishable industries throughout the United States.

(See id. ¶¶ 14–15). Plaintiff employed Perez for 11 years as a valued member of its management

staff. (See id. ¶¶ 23–24; Defs.’ SOF ¶ 8; Pl.’s Resp. SOF ¶ 8).

Defendants’ version of the facts.3 Perez oversaw Plaintiff’s sales and customer service.

(See Defs.’ SOF ¶ 8). Perez regularly worked from home when he was not working at Plaintiff’s

office. (See id. ¶¶ 10–11; Pl.’s Resp. SOF ¶¶ 10–11). He took calls outside of working hours to

address customer concerns and issues. (See Defs.’ SOF ¶¶ 11–12). Perez routinely forwarded

company emails to his personal Gmail account to facilitate his work with customers and to create

Google spreadsheets for Plaintiff. (See id. ¶¶ 18–19). Perez did not develop any knowledge,

secrets, techniques, tactics, or skills while employed with Plaintiff; nor did he forward any

proprietary company information, trade secrets, or confidential information for non-legitimate

business purposes. (Compare id. ¶¶ 7, 9, 23–24, with Pl.’s Resp. SOF ¶¶ 7, 9, 23–24 (disputing

these facts)).

Perez resigned from his position in mid-February and joined Pro Cold, a decision he made

post-resignation. (See Defs.’ SOF ¶ 15; Defs.’ Reply SOF ¶ 57). Plaintiff notified its customers

3 Plaintiff (unnecessarily) disputes the most basic of background facts, but such disputes often concern

immaterial facts or citations. (Compare Defs.’ SOF ¶ 1, with Pl.’s Resp. SOF ¶ 1 (disputing Defendants’

citation to deposition testimony regarding the role of Plaintiff’s founder, Ralph Milman)). It is inefficient

for the Court to address each of Plaintiff’s disputes.

by letter that Perez resigned from his position. (See Defs.’ SOF ¶ 16). When the customers

responded to Plaintiff’s correspondence, Plaintiff provided each customer with Perez’s personal

email and phone number. (See id.). Perez inputted these customers’ contact information into his

personal cell phone once they called him. (See id. ¶ 17).

Following his resignation, Perez offered to continue working with Plaintiff and help with

customer issues. (See id. ¶ 20). Perez forwarded company emails in order to assist Plaintiff’s

customers. (See id.). He states Yudmila Gonzalez, a former Plaintiff employee, reached out to

him “for []his help with [Plaintiff’s] customers” because Ms. Gonzalez “became frustrated,

exhausted, and stressed” following Perez’s departure. (Id. ¶ 22 (alterations added)). At this time,

Perez neither forwarded proprietary company information and trade secrets for non-legitimate

purposes nor provided third parties with confidential information. (Compare id. ¶¶ 23–24, with

Pl.’s Resp. SOF ¶¶ 23–24 (disputing these facts)).

Plaintiff’s chief financial officer, Ronen Koubi, “belie[ves]” Perez “took a price list with

him when he left his office” for the last time on February 14, 2020. (Defs.’ SOF ¶¶ 2, 25 (alteration

added); see also Defs.’ Reply SOF ¶ 57). Mr. Koubi saw the price list prior to Perez’s departure

but was unable to locate it following Perez’s resignation. (See Defs.’ SOF ¶ 25). No inventory,

however, was taken of the documents (or confidential information) in Perez’s office; nor did

anyone observe Perez leave Plaintiff’s premises with any documents or call Perez to ask if he did.

(See id. ¶¶ 27, 30). The alleged stolen price sheet contained prices for only floral clients. (See id.

¶ 29).

Plaintiff uses Google Drive, a cloud-based system, to maintain and share its corporate

documents. (See id. ¶ 21). Plaintiff’s printers do not include a confidentiality stamp or designation

when company documents are printed by employees. (See id. ¶ 32). Shippers and farms can access

Plaintiff’s customer data from its servers, including the customer names, the dates of service, and

the numbers of boxes being shipped. (See id. ¶ 33). Plaintiff’s prices are calculated by using base

rates and a formula of charges that is added to the base rates. (See id. ¶ 34). Plaintiff considers

these two components proprietary; yet, Plaintiff’s customers and truck drivers are aware of base

rates, additional charges, and trip sheets and manifests. (See id. ¶¶ 34, 38). Plaintiff’s truck drivers

are not required to execute confidentiality agreements. (See id. ¶ 35).

Perez did not initiate contact with any of Plaintiff’s customers — and specifically, Buds

and Bloom and Derita. (See id. ¶¶ 39–40, 43). Quite the contrary; Buds and Bloom and Derita

contacted Perez and requested price quotes after learning of his resignation from Plaintiff. (See

id. ¶ 40). Plaintiff is uncertain whether customers shared its pricing information with Intermodal.

(See id. ¶¶ 41–42). Perez did not share confidential information with the Intermodal Defendants;

nor did the Intermodal Defendants encourage Perez to either forward emails to himself or share

confidential information. (See id. ¶¶ 43–47).

Plaintiff’s version of the facts. Perez’s employment was governed by a Mutual

Nondisclosure Agreement. (See Pl.’s SOF ¶ 52; id., Ex. 2, Mutual Nondisclosure Agreement

(“Agreement”) [ECF No. 109-2]; Defs.’ Reply SOF ¶ 52). The Agreement included definitions

for “Confidential Information” and “Trade Secrets.” (Pl.’s SOF ¶ 53 (quotation marks omitted);

see also Agreement 14). The Agreement authorized Perez to “only use [] Confidential Information

or Trade Secrets in connection with the [] business relationship” with Plaintiff. (Agreement 2

(alterations added); see also Pl.’s SOF ¶ 54). The Agreement granted Perez “[a]ccess to

Confidential Information and Trade Secrets . . . on a need-to-know basis.” (Agreement 2

4 The Court uses the pagination generated by the electronic CM/ECF database, which appears in the headers

of all court filings. Citations to deposition testimony and hearing transcripts rely on the pagination and line

numbering in the original document.

(alterations added); see also Pl.’s SOF ¶ 55; Defs.’ Reply SOF ¶ 55). Plaintiff distributed to Perez

an employee manual containing detailed policies on data security, computer usage, and securing

the company’s confidential information. (See Compl. ¶ 26; Pl.’s Resp. SOF ¶¶ 13–14).5

Perez resigned from his position in mid-February to join Pro Cold. (See Pl.’s SOF ¶¶ 56,

61–64; Pl.’s Resp. SOF ¶ 15). In February 2020, Perez, with assistance from former Plaintiff

employee, Ms. Gonzalez, “forwarded himself a host of documents including a contract with a large

customer, a list of shippers, email addresses, cellular numbers, and trip sheets.” (Pl.’s SOF ¶ 58;

see also Pl.’s Resp. SOF ¶ 22). Perez forwarded these documents into Intermodal and Pro Cold’s

email system. (See Pl.’s SOF ¶ 66). Perez and Veliz (1) personally accessed Plaintiff’s

confidential information; (2) discussed details contained within Plaintiff’s Electronic Data

Interchange;6 and (3) utilized this information to convince one of Plaintiff’s clients to switch to

Pro Cold or Intermodal. (See id. ¶¶ 68–69).

Plaintiff’s Complaint. On March 3, 2020, Plaintiff filed its Complaint against Defendants,

asserting eleven claims for relief: injunctive relief against Perez (Count I); injunctive relief against

the Intermodal Defendants (Count II); violations of the Defend Trade Secrets Act (“DTSA”), 18

U.S.C. section 1836 et seq., against Defendants (Count III); violations of the Computer Fraud and

Abuse Act, 18 U.S.C. section 1030 et seq., against Defendants (Count IV); violations of the

Economic Espionage Act, 18 U.S.C. section 1832 et seq., against Defendants (Count V); violations

of the Florida Uniform Trade Secrets Act (“FUTSA”), section 688.02, Florida Statutes, against

5 Perez testified he “[n]ever” received an employee handbook. (May 1, 2020 Hr’g Tr. [ECF No. 58] 110:22–

24 (alteration added)).

6 Plaintiff’s Electronic Data Interchange “contains details on [Plaintiff’s] truck and loads, client information

including names, contacts, and locations, client volume, and other information generally kept confidential

by [Plaintiff].” (Decl. Samuel Acosta [ECF No. 109-3] ¶ 14 (alterations added)).

Defendants (Count VI); tortious interference with an advantageous business relationship against

Intermodal and Pro Cold (Count VII); civil conspiracy against Defendants (Count VIII); breach of

fiduciary duty against Perez (Count IX); aiding and abetting breaches of fiduciary duty against the

Intermodal Defendants (Count X); and violations of the Racketeer Influence and Corrupt

Organizations Act, 18 U.S.C. section 1962 et seq., against Defendants (Count XI). (See generally

Compl.).

Defendants moved to dismiss Counts IV, VII, VIII, and XI for failure to satisfy Federal

Rules of Civil Procedure 8(a) and 9(b) and for failure to state claims for relief under Federal Rule

of Civil Procedure 12(b)(6). (See generally J. Mot. to Dismiss Compl. [ECF No. 41]). On July

15, 2020, the Court dismissed Counts IV, VII, and XI but granted leave to amend. See generally

Fla. Beauty Flora Inc. v. Pro Intermodal L.L.C., No. 20-20966-Civ, 2020 WL 4003494 (S.D. Fla.

July 15, 2020). Plaintiff then filed a Notice of Intent to Proceed with Litigation [ECF No. 52],

advising that it was pursuing only the remaining counts in the Complaint. (See generally id.).

Defendants’ Motion. Defendants now move for summary judgment on all remaining

counts of Plaintiff’s Complaint.7 (See generally Mot.; Reply).

II. STANDARD

Summary judgment may only be rendered if the pleadings, discovery and disclosure

materials on file, and any affidavits show there is no genuine issue as to any material fact and the

movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a), (c). An issue of fact

is “material” if it might affect the outcome of the case under the governing law. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). It is “genuine” if the evidence could lead a

7 Plaintiff concedes summary judgment is appropriate for its claim under the Economic Espionage Act

(Count V). (See Resp. 12).

reasonable jury to find for the non-moving party. See id.; see also Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986). The Court draws all reasonable inferences in favor

of the party opposing summary judgment. See Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th

Cir. 2000).

If the non-moving party bears the burden of proof at trial, the moving party may obtain

summary judgment simply by: (1) establishing the nonexistence of a genuine issue of material fact

as to any essential element of a non-moving party’s claim, and (2) showing the Court that there is

not sufficient evidence to support the non-moving party’s case. See Blackhawk Yachting, LLC v.

Tognum Am., Inc., No. 12-14209-Civ, 2015 WL 11176299, at *2 (S.D. Fla. June 30, 2015)

(citations omitted). “Once the moving party discharges its initial burden, a non-moving party who

bears the burden of proof must cite to . . . materials in the record or show that the materials cited

do not establish the absence or presence of a genuine dispute.” Id. (citing Fed. R. Civ. P. 56(c)(1);

alteration added; quotation marks omitted).

“Summary judgment may be inappropriate even where the parties agree on the basic facts,

but disagree about the inferences that should be drawn from these facts.” Whelan v. Royal

Caribbean Cruises Ltd., No. 1:12-cv-22481, 2013 WL 5583970, at *2 (S.D. Fla. Aug. 14, 2013)

(citation omitted). Indeed, “[i]f reasonable minds might differ on the inferences arising from

undisputed facts, then the Court should deny summary judgment” and proceed to trial. Id.

(alteration added; citations omitted).

III. ANALYSIS

Counts III and VI – the DTSA and the FUTSA. Plaintiff brings parallel claims under the

DTSA and Florida’s trade-secret statute, the FUTSA.8 (See Compl. ¶¶ 87–98, 119–28). The

8 Because Plaintiff’s trade secret misappropriation claims under the DTSA and the FUTSA are essentially

the same, the Court addresses the claims together. See, e.g., Hurry Fam. Revocable Tr. v. Frankel, No.

DTSA provides a federal cause of action to “[a]n owner of a trade secret that is misappropriated .

. . 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(b)(1) (alterations added). To establish a violation of the

DTSA, a plaintiff must show (1) it owns a valid trade secret; (2) the trade secret relates to a product

or service used in, or intended for use in, interstate commerce; and (3) a defendant misappropriated

that trade secret. See IT Works Mktg., Inc. v. Melaleuca, Inc., No. 8:20-cv-1743, 2021 WL

1650266, at *7 (M.D. Fla. Apr. 27, 2021) (citation omitted).

The DTSA defines a “trade secret” as “all forms and types of financial, business, scientific,

technical, economic, or engineering information, including patterns, plans, compilations, program

devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or

codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized

physically, electronically, graphically, photographically, or in writing[.]” 18 U.S.C. § 1839(3)

(alteration added; quotation marks omitted). Information will not be considered a trade secret

unless: (1) “the owner [] has taken reasonable measures to keep such information secret;” and (2)

“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[.]” Id. (alterations added).

A misappropriation occurs when: “(1) a person acquires the trade secret while knowing or

having reason to know that he or she is doing so by improper means; (2) a person who has acquired

or derived knowledge of the trade secret discloses it without the owner’s consent; or (3) when a

person who has acquired or derived knowledge of the trade secret uses it without the owner’s

8:18-cv-2869, 2019 WL 6311115, at *13 (M.D. Fla. Nov. 25, 2019) (“Plaintiffs’ claims under the [DTSA

and the FUTSA] require very similar showings, namely, the existence of a trade secret and the defendant’s

misappropriation of that trade secret.” (alteration added)).

consent.” Frankel, 2019 WL 6311115, at *13 (quotation marks and citation omitted). Put another

way, “[t]he DTSA contemplates three theories of liability: (1) acquisition, (2) disclosure, or (3)

use.” Robillard v. Opal Labs, Inc., 428 F. Supp. 3d 412, 451–52 (D. Or. 2019) (alteration added;

quotation marks and citations omitted).

Similarly, the FUTSA provides civil remedies for the misappropriation of trade secrets.

See Fla. Stat. §§ 688.001–009. “To prevail on a FUTSA claim, a plaintiff must demonstrate that

(1) it possessed a trade secret and (2) the secret was misappropriated.” Yellowfin Yachts, Inc. v.

Barker Boatworks, LLC, 898 F.3d 1279, 1297 (11th Cir. 2018) (quotation marks and citations

omitted).

The FUTSA defines a “trade secret” as “information that: (a) derives independent

economic value 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) is the

subject of efforts that are reasonable under the circumstances to maintain its secrecy.” Compulife

Software Inc. v. Newman, 959 F.3d 1288, 1311 (11th Cir. 2020) (alterations adopted; quoting Fla.

Stat. § 688.002(4)). Misappropriation includes “‘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 [] 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.’” Scanz Techs., Inc. v. JewMon Enters., LLC, No. 20-22957-Civ, 2021

WL 65466, at *7 (S.D. Fla. Jan. 7, 2021) (alteration added; other alterations adopted; quoting Fla.

Stat. 688.002(2)); see also Compulife Software Inc., 959 F.3d at 1311 (“One party can

misappropriate another’s trade secret by either acquisition, disclosure, or use.” (citing Fla. Stat. §

688.002(2))).

Defendants contend there is no genuine dispute of material fact over whether any of

Plaintiff’s alleged trade secrets qualifies as a “trade secret” under the above definitions. (Mot. 4–

6, 14). According to Defendants, it is undisputed Plaintiff’s trade secrets — particularly, trip

sheets, price lists, business documents, and customer manifests — are (or, at the very least, include)

public information that is not unique to Plaintiff’s business. (See id.; see also Reply 6–7).

Defendants insist there is nothing that separates Plaintiff’s purported trade secrets from matters

generally known in the industry. (See Mot. 4–6, 14; Reply 6–7). Defendants conclude Plaintiff

cannot establish the first element — the existence of a trade secret — of its claims for

misappropriation of trade secrets under the DTSA or the FUTSA. (See Mot. 4–6, 14).

The alleged trade secrets are a compilation of Plaintiff’s “customer list, pricing information

and formulas, surcharge rate calculation, sales forecasting data, customer restrictions and

requirements information, customer ordering databases and history, [and] future business

expansion plans.” (Compl. ¶ 40 (alteration added)). Plaintiff, through its corporate representative,

Mr. Koubi, testified Perez “st[ole] . . . [r]ates, customers’ contacts, sales information, routes

information, lanes information, orders of stops, capacity, [and] contracts with . . . key customer[s].”

(Apr. 5, 2021 Koubi Dep. [ECF No. 105-5] 72:5–9, 84:18–22, 86:2–5 (alterations added); see also

Oct. 20, 2020 Koubi Dep. [ECF No. 105-4] 81:1–9; Acosta Decl. ¶¶ 11–12, 15, 17).9 Mr. Koubi

9 Defendants contend Acosta’s Declaration fails to comply with Federal Rule of Civil Procedure 56(c)(4).

(See Reply 2–3); see also Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration used to support or oppose a

motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show

that the affiant or declarant is competent to testify on the matters stated.”).

The Court finds certain portions of Acosta’s Declaration are grounded in personal knowledge and thus is

satisfied the Declaration does not run afoul of Rule 56(c)(4). Defendants’ objection to the entire Acosta

Declaration on personal-knowledge grounds is overruled. (See, e.g., Acosta Decl. ¶ 11 (“While working

referred to Plaintiff’s price and lane (or optimal route) information as the company’s blueprint to

success and described this information as a unique, confidential asset developed over “years and

years and years of trials and error[s].” (Oct. 20, 2020 Koubi Dep. 79:10–20 (alteration added); see

also Apr. 5, 2021 Koubi Dep. 73:3–13, 74:13–15, 20–24, 78:13–16, 81:10–82:1). Mr. Koubi

explained Plaintiff’s complex logistical information is valuable because it could allow competitors

to strategically and (according to Plaintiff, illegally) undercut Plaintiff’s prices and success in the

industry. (See Oct. 20, 2020 Koubi Dep. 81:5–6, 82:7–84:3; Apr. 5, 2021 Koubi Dep. 75:5–21).

Mr. Koubi emphasized the information and processes Perez allegedly stole were Plaintiff’s trade

secrets. (See Apr. 5, 2021 Koubi Dep. 59:2–9, 73:3–13, 101:9–21, 103:19–22; Oct. 20, 2020

Koubi Dep. 26:20–30:4).

Plaintiff produces enough evidence the information and processes it provided Perez access

to constitute trade secrets. The Court will not — as Defendants invite it to do — determine as a

matter of law that Plaintiff’s information and processes are not trade secrets. Indeed, that issue is

for the trier of fact to resolve. See, e.g., Compulife Software Inc., 959 F.3d at 1311 (“Whether

something is a trade secret is a question typically resolved by a fact finder after full presentation

of evidence from each side.” (alteration adopted; quotation marks and citations omitted));

Furmanite Am., Inc. v. T.D. Williamson, Inc., 506 F. Supp. 2d 1134, 1141 (M.D. Fla. 2007) (noting

courts are extremely hesitant to grant summary judgment regarding the fact-intensive question of

the existence of a trade secret).

with Pro Cold, I overheard daily conversations between Perez, Veliz, and others regarding [Plaintiff], its

customers and its pricing for customers.” (alteration and emphasis added)); id. ¶ 15 (“On more than one

occasion, I saw Perez, Veliz, and others accessing and looking at [Plaintiff’s] [Electronic Data Interchange]

from inside Pro Cold’s office.” (alterations and emphasis added)); id. ¶ 17 (“On numerous occasions, I

overheard Perez, Veliz, and others discussing the details contained within [Plaintiff’s] [Electronic Data

Interchange], and how to utilize that information to convince the client to switch to Pro Cold or []

Intermodal.” (alterations and emphasis added))).

Defendants next contend Plaintiff failed to take reasonable measures to protect its trade

secrets. (See Mot. 6–9, 14–15). For a trade secret to exist, the owner must take “reasonable

measures to keep such information secret[.]” 18 U.S.C. § 1839(3) (alteration added); see also Fla.

Stat. § 688.002(4).

Plaintiff cites three measures it takes to maintain secrecy of the company’s confidential

information — specifically, password protection on software storing its confidential information,

execution of non-disclosure agreements, and employee manuals as to the use and non-disclosure

of proprietary information. (See Yudmila Gonzalez Dep. [ECF No. 105-10] 82:25–84:6;

Agreement 1–2; Oct. 20, 2020 Koubi Dep. 12:4–13:24; Compl. ¶ 26; Pl.’s Resp. SOF ¶¶ 13–14).

Defendants do not dispute Plaintiff identifies measures it takes to preserve the secrecy of its trade

secrets but cite evidence purportedly showing Plaintiff’s confidential information is readily

ascertainable in the public domain. (See Mot. 6–9, 14–15). Like the issue of trade secrets, “the

Court is not persuaded that summary judgment is the most appropriate — or, for that matter, the

most effective — mechanism for adjudicating the fact-intensive question[] of . . . whether []

[P]laintiff took reasonable steps to protect its trade secrets.” Matrix Health Grp. v. Sowersby, No.

18-61310-Civ, 2019 WL 4929917, at *6 (S.D. Fla. Oct. 7, 2019) (alterations added; quotation

marks and citation omitted).

Defendants further argue Plaintiff cannot show trade secret misappropriation: particularly,

that “Perez disclosed and Defendants used confidential information acquired from [Plaintiff].”

(Mot. 10 (alteration added; emphasis omitted); see also id. 15). The Court disagrees in part and

concludes questions of fact preclude summary judgment on the issue as to Perez, Pro Cold, and

Intermodal.

Plaintiff points out Perez took, forwarded, or received confidential information when he

left his employment with Plaintiff to work for Intermodal and Pro Cold. (See Apr. 5, 2021 Koubi

Dep. 72:5–9, 84:18–22, 86:2–5; Oct. 20, 2020 Koubi Dep. 81:1–4; Gonzalez Dep. 79:9–81:4;

Acosta Decl. ¶ 15; Decl. Rec. Custodian [ECF No. 109-5] 4). It emphasizes that the timing of

Perez’s arrival at Intermodal and Pro Cold raises significant questions. (See Pl.’s SOF ¶¶ 59–64;

Defs.’ Reply SOF ¶¶ 59–64). Plaintiff further highlights Samuel Acosta’s Declaration, in which

Acosta states he was a former independent contractor with Pro Cold and that he “saw” and

“overheard” on “numerous occasions[,]” Defendants discussing “how to utilize [Plaintiff’s

Electronic Data Interchange] to convince [a] client to switch to Pro Cold or [] Intermodal.” (Acosta

Decl. ¶¶ 3, 15, 17 (alterations added); see also Apr. 5, 2021 Koubi Dep. 61:14–63:16 (testifying

that Perez “constantly . . . solicit[s] [Plaintiff’s] customers, using the information that he took from

[Plaintiff] wrongfully.” (alterations added))). Fact issues clearly remain as to whether Perez, Pro

Cold, and Intermodal disclosed or used the alleged trade secrets.10

10 Defendants insist “there is no evidence to support [] Veliz’[s] individual liability.” (Mot. 20–22

(alterations added; bold and capitalization omitted)). The Court agrees with respect to Plaintiff’s DTSA

and FUTSA claims.

Plaintiff, in a perfunctory manner, states the evidence — although citing to no evidence — supports Veliz’s

individual liability. (See Resp. 17; Reply 9 (aptly observing: “Other than a conclusory assertion that Veliz

committed tortious acts as an individual, [Plaintiff] identifies no evidence that he acted other than in his

corporate capacity.” (alteration added))). It is worth repeating: Plaintiff cites no evidence showing Veliz,

individually and not as President or managing member of Pro Cold or Intermodal (see Compl. ¶¶ 19–20),

misappropriated Plaintiff’s trade secrets under any of the theories set forth in the DTSA or the FUTSA, or

engaged in any fraud, intentional act, or any other conduct that would rise to a level justifying the imposition

of personal liability on him. See 18 U.S.C. § 1839(5); Fla. Stat. § 688.002(2); (see also Pl.’s Resp. SOF

¶ 47 (emphasizing the fact Veliz “at least[] discussed” Plaintiff’s pricing with Perez but not acquiring,

disclosing, or using any trade secrets (alteration and emphasis added)); Resp. 11 (stating Veliz accessed

Plaintiff’s Electronic Data Interchange but in doing so, solely relies on Acosta’s Declaration that states he

is unaware if such access was improperly obtained (citing Acosta Decl. ¶ 15))). The Court will not sift

through the record to find evidence supporting Plaintiff’s claims against Veliz. See Case v. Eslinger, 555

F.3d 1317, 1329 (11th Cir. 2009) (“A party cannot readily complain about the entry of a summary judgment

order that did not consider an argument they [sic] chose not to develop for the district court at the time of

the summary judgment motions.” (quotation marks and citation omitted)).

In short, Plaintiff raises triable issues of fact on its DTSA and FUTSA claims as to

Defendants, Perez, Pro Cold, and Intermodal.11, 12

Counts VIII, IX, and X – civil conspiracy, breach of fiduciary duty, and aiding and

abetting breaches of fiduciary duty claims. Defendants argue Plaintiff’s claims in Counts VIII,

IX, and X are preempted by the FUTSA. (See Mot. 15–17). The “FUTSA preempts certain

‘conflicting tort, restitutory, and other laws of this state providing civil remedies for

misappropriation of a trade secret.’” Scanz Techs., Inc., 2021 WL 65466, at *8 (quoting Fla. Stat.

§ 688.008(1)). The law does not affect “[o]ther civil remedies that are not based upon

misappropriation of a trade secret[.]” Fla. Stat. § 688.008(2) (alterations added).

11 Defendants contend Plaintiff is not entitled to punitive damages under Florida law. (See Mot. 18–19).

In rebuttal, Plaintiff insists it demonstrates entitlement to punitive damages under Florida law. (See Resp.

16–17). This issue is relatively straightforward. Because Plaintiff does not allege entitlement to or demand

punitive damages under Florida law in the Complaint — but rather only reserves a right to do so —

Defendants’ request for summary judgment on punitive damages is unnecessary and thus denied. (See

Compl. 29 (“Plaintiff further reserves all right to seek punitive damages[.]” (alteration added))); cf. Sura v.

Portfolio Recovery Assocs., LLC, No. 2:17-cv-676, 2018 WL 6983500, at *6 (M.D. Fla. Nov. 26, 2018),

report and recommendation adopted, 2018 WL 6983482 (M.D. Fla. Dec. 12, 2018) (finding an affirmative

defense directed toward the plaintiff’s reservation of right to include punitive damages “immaterial”

because no demand for punitive damages had been pleaded or demanded).

The Court notes Plaintiff seeks punitive damages against Defendants under the DTSA. (See Compl. 17).

The DTSA permits recovery of “exemplary damages in an amount not more than 2 times the amount of

[compensatory] damages awarded under subparagraph (B)” and “if the trade secret is willfully and

maliciously misappropriated[.]” 18 U.S.C. § 1836(b)(3)(C) (alterations added). Neither party addresses

this language of the DTSA. (See generally Mot.; Resp.). Either way, the issues of fact discussed above

“encompass whether Defendants engaged in willful and malicious misappropriation and fall within the

province of the jury.” Nephron Pharms. Corp. v. Hulsey, No. 6:18-cv-1573, 2020 WL 7137992, at *2

(M.D. Fla. Dec. 7, 2020) (quotation marks omitted; citing 18 U.S.C. §§ 1836(b)(3)(C), (D); other citations

omitted). For this same reason, the Court will not determine whether Plaintiff is entitled to attorney’s fees

and costs at this stage. (See Mot. 19–20); see also Nephron Pharms. Corp., 2020 WL 7137992, at *2 (citing

Fla. Stat. § 688.005; other citations omitted); Fla. Stat. § 688.005 (“If . . . willful and malicious

misappropriation exists, the court may award reasonable attorney’s fees to the prevailing party.” (alteration

added)).

12 Defendants maintain Plaintiff is not entitled to actual damages, doing so by selectively quoting Mr.

Koubi’s deposition and citing an out-of-circuit district court rule statement. (See Mot. 17–18 (citing

Motorola Sols., Inc. v. Hytera Commc’ns Corp., 495 F. Supp. 3d 687, 708 (N.D. Ill. 2020))). Simply put,

the Court is not persuaded. (See Resp. 15–16).

To start, Defendants raise the FUTSA preemption defense for the first time on summary

judgment. (Compare Def., Perez’s Answer and Affirmative Defenses to Compl. [ECF No. 54] 3–

5, Def., Veliz’s Answer and Affirmative Defenses to Compl. [ECF No. 55] 9–10, Def.,

Intermodal’s Answer and Affirmative Defenses to Compl. [ECF No. 56] 9–10, and Def., Pro

Cold’s Answer and Affirmative Defenses to Compl. [ECF No. 57] 9–10, with Defs.’ Mot. Summ.

J. [ECF No. 83] 14–16, and Mot. 15–17).

“Preemption is an affirmative defense that usually must be raised in an answer or other

responsive pleading and, if not so raised, the defense is considered waived.” Small v. Amgen, Inc.,

No. cv 2:12-476, 2016 WL 4942078, at *2 (M.D. Fla. Jan. 25, 2016) (citation omitted); see also

Steger v. Gen. Elec. Co., 318 F.3d 1066, 1077 (11th Cir. 2003) (“The pleading of an affirmative

defense is mandated by Federal Rule Civil Procedure 8(c) to be presented in a responsive pleading,

and a party waives its right to advance an affirmative defense by failing to assert it in such.”

(citation omitted)); Kleiman v. Wright, No. 18-cv-80176, 2020 WL 5632654, at *32 (S.D. Fla.

Sept. 21, 2020) (noting FUTSA preemption is an affirmative defense). Affirmative defenses,

however, are not waived if a plaintiff is not prejudiced where such a defense is raised for the first

time at summary judgment. See Grant v. Preferred Research, Inc., 885 F.2d 795, 797–98 (11th

Cir. 1989) (finding no error where the district court considered an affirmative defense first raised

in a motion for summary judgment filed one month before trial); see also Berman v. Kafka, 661 F.

App’x 621, 624–25 (11th Cir. 2016) (“Where a plaintiff receives notice of an affirmative defense

by some means other than pleadings, the defendant’s failure to comply with [Rule] 8(c) does not

cause the plaintiff any prejudice, and the trial court commits no error by considering the affirmative

defense on the merits.” (alteration added; quotation marks and citation omitted)).

Plaintiff is not prejudiced by allowing Defendants to assert a preemption defense, as it has

not only been on notice of the defense but also been given adequate time to respond. On March

8, 2021, Defendants put Plaintiff on notice of their intent to seek summary judgment on the unpled

affirmative defense of preemption. (See Defs.’ Mot. Summ. J. 14–16). Since that time, the Court

denied Defendants’ initial summary judgment motion, permitted Plaintiff to take additional

discovery before responding to a dispositive motion, and allowed the parties to refile dispositive

motions. (See Mar. 22, 2021 Order [ECF No. 90] 1; see also Dec. 22, 2020 Order [ECF No. 72]

2 (resetting trial during the Court’s two-week trial calendar beginning on August 2, 2021)).

Notably, Plaintiff does not claim to be unfairly surprised or prejudiced by Defendants raising the

affirmative defense in their Motion. (See generally Resp.).

Given these circumstances, the Court will consider the preemption affirmative defense.

See, e.g., Edwards v. Fulton Cnty., Ga., 509 F. App’x 882, 887–88 (11th Cir. 2013) (recognizing

“a defendant does not waive an affirmative defense if the earlier omission from responsive

pleadings does not prejudice the plaintiff.” (collecting cases)); Pensacola Motor Sales Inc. v. E.

Shore Toyota, LLC, 684 F.3d 1211, 1222 (11th Cir. 2012) (concluding the district court did not

abuse its discretion when the defendant raised its defense in a summary judgment motion a month

and a half before trial and the plaintiff had not suggested it suffered prejudice from the delay).

Next, the merits. “To determine whether allegations of trade-secret misappropriation

preempt a plaintiff from sufficiently pleading a separate, but related tort, the Court must evaluate

whether allegations of trade secret misappropriation alone comprise the underlying wrong; if so,

the cause of action is barred by [section] 688.008.” Sentry Data Sys., Inc. v. CVS Health, 361 F.

Supp. 3d 1279, 1294 (S.D. Fla. 2018) (alteration added; quotation marks and citation omitted).

“Thus, a plaintiff’s separate tort claim is preempted by [the] FUTSA if there is no material

distinction between the plaintiff’s FUTSA claim and the other allegation.” Id. at 1294–95

(alteration added; quotation marks and citations omitted). “In other words, the allegations must

be separate and distinct.” ThinkLite LLC v. TLG Sols., LLC, No. 16-24417-Civ, 2017 WL

5972888, at *4 (S.D. Fla. Jan. 31, 2017) (citation omitted).

The Court discerns no material distinction between the FUTSA claim and the claims

asserted in Counts VIII (civil conspiracy), IX (breach of fiduciary duty), and X (aiding and abetting

breaches of fiduciary duty). Indeed, the underlying wrong in each of those claims is limited to

trade secret misappropriation and each re-alleges all the prior allegations of the Complaint.13

(Compare Compl. Count VI (FUTSA) ¶¶ 121–24 (alleging Defendants misappropriated trade

secrets by transmitting them without authority to Perez’s email account; removing confidential

information; disclosing trade secrets to other Defendants; and acquiring those secrets through

improper means), with Count VIII (civil conspiracy) ¶¶ 136–37, 139–42 (pleading Defendants

forged an agreement to secure trade secrets; and took overt acts by removing trade secrets from

Plaintiff’s office, by accepting misappropriated trade secrets, and by utilizing trade secrets for

business purposes), Count IX (breach of fiduciary duty) ¶¶ 144, 146 (stating Perez “knowingly

and willfully breached his fiduciary duty to Plaintiff . . . by: (1) . . . conspir[ing] with [] Intermodal

to acquire and misappropriate the trade secrets of Plaintiff; (2) transmitting Plaintiff’s trade secrets

to his personal e-mail account for his and his new employer’s later use; [and] (3) removing

documents containing company trade secrets and confidential company information” (alterations

13 Plaintiff appears to agree. In its words: “Plaintiff’s common law claims are materially distinct from

Plaintiff’s FUTSA claim[] because each alleges that the Defendants, as applicable, misappropriated

Plaintiff’s trade secrets to promote their own interests.” (Resp. 15 (alteration and emphasis added)). Said

differently, the misappropriation of trade secrets comprises the underlying wrong for each of Counts VIII,

IX, and X. Although Plaintiff suddenly backtracks in the subsequent sentence — confusingly explaining

these “common law claims speak to [] why” Defendants misappropriated trade secrets (id. (alteration added;

emphasis omitted)) — the Court is unconvinced by Plaintiff’s attempt to draw material distinctions between

Counts VIII, IX, and X and the allegations of the FUTSA violations.

added)), and Count X (aiding and abetting breaches of fiduciary duty) ¶¶ 148, 150–51 (alleging

the Intermodal Defendants aided and participated in the following breaches of fiduciary duties:

“(1) . . . conspir[ing] with [] [Perez] to acquire and misappropriate the trade secrets of Plaintiff; (2)

transmitting Plaintiff’s trade secrets to [Perez’s] personal e-mail account for his and his new

employer’s later use; [and] (3) removing documents containing company trade secrets and

confidential company information” (alterations added))).

In sum, Plaintiff fails to identify a material distinction between its FUTSA claim and the

claims asserted in Counts VIII, IX, and X; thus, the Court finds those claims are preempted.

Summary judgment will be entered in favor of Defendants on Counts VIII, IX, and X.

Counts I and II – injunctive relief claims. Counts I and II are styled as claims for

injunctive relief. (See Compl. ¶¶ 64–86).

“The Eleventh Circuit has made clear that any motion or suit for either a preliminary or

permanent injunction must be based upon a cause of action. There is no such thing as a suit for a

traditional injunction in the abstract. For a traditional injunction to be even theoretically available,

a plaintiff must be able to articulate a basis for relief that would withstand scrutiny under [Rule]

12(b)(6) (failure to state a claim).” Organo Gold Int’l, Inc. v. Aussie Rules Marine Servs., Ltd.,

416 F. Supp. 3d 1369, 1379 (S.D. Fla. 2019) (alteration added; other alteration adopted; quotation

marks omitted; quoting Alabama v. U.S. Army Corps of Eng’rs, 424 F.3d 1117, 1127 (11th Cir.

2005)). “An injunction is a remedy potentially available only after a plaintiff can make a showing

that some independent legal right is being infringed — if the plaintiff’s rights have not been

violated, he is not entitled to any relief, injunctive or otherwise.” Alabama, 424 F.3d at 1127

(quotation marks and citation omitted). Stated differently, “an injunction is not a cause of action

but a remedy.” Pierson v. Orlando Reg’l Healthcare Sys., Inc., 619 F. Supp. 2d 1260, 1288 (M.D.

CASE NO. 20-20966-CIV-ALTONAGA/Goodman

Fla. 2009) (alteration added; collecting cases); see also Fed. Nat’l Mortg. Ass’n v. Monaco

Landscape Maint. Ass’n, Inc., No. 2:16-cv-2980, 2017 WL 2683682, at *4 (D. Nev. June 20, 2017)

(following “the well-settled rule in that a claim for ‘injunctive relief’ standing alone is not a cause

of action” (collecting cases)).

Plaintiff's “claims” for injunctive relief are remedies and are not properly brought as

independent, substantive claims. Consequently, Counts I and II are dismissed.

IV. CONCLUSION

For the foregoing reasons, it is ORDERED AND ADJUDGED that Defendants, Pro

Intermodal L.L.C., Pro Cold Storage, Inc., Victor Veliz, and Gustavo Perez’s Renewed and

Supplemented Motion for Summary Judgment [ECF No. 104] is GRANTED in part and

DENIED in part as follows:

1. The Motion is DENIED with respect to Counts III and VI as to Defendants Perez,

Intermodal, and Pro Cold.

2. Summary judgment in favor of Defendant Perez is GRANTED as to Counts V, VIII, and

IX.

3. Summary judgment in favor of Defendants Intermodal and Pro Cold is GRANTED as to

Counts V, VIII, and X.

4. Summary judgment in favor of Defendant Veliz is GRANTED as to Counts III, VI, V,

VIII, and X.

5. Counts I and II of the Complaint are DISMISSED without prejudice.

DONE AND ORDERED in Miami, Florida, this 14th day of May, 2021.

(oe WW. AG

CECILIA M. ALTONAGA

UNITED STATES DISTRICT JUDGE

cc: counsel of record

19