Restorative Care of America, Inc. v. Josloff

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

RESTORATIVE CARE

OF AMERICA, INC.,

Plaintiff,

v. Case No. 8:22-cv-1404-KKM-AEP

DEAN JOSLOFF,

Defendant.

____________________________________

ORDER

Restorative Care of America, Inc., (RCAI), a Florida-based company that

manufactures and sells orthopedic devices, sues its former president, Dean Josloff, for

violations of the Defend Trade Secrets Act (DTSA) and the Florida Uniform Trade

Secrets Act (FUTSA) along with six counts for various state law torts. Am. Compl. (Doc.

18). Josloff brings counterclaims against RCAI alleging defamation, religious

discrimination under the Florida Civil Rights Act (FCRA) and the New Jersey Law

Against Discrimination (NJLAD), fraud, and negligent misrepresentation. Am.

Counterclaim (Doc. 67). RCAI moves for summary judgment on its claims and on Josloff’s

counterclaims. MSJ (Doc. 144). Josloff responded, Resp. (Doc. 169), and RCAI replied,

Reply (Doc. 172). For the reasons below, I grant in part and deny in part the motion.

I. BACKGROUND

RCAI manufactures and sells orthopedic and rehabilitative products. MSJ at 1;

Resp. at 2. After working at RCAI for many years, RCAI promoted Josloff to

National Sales Manager in 2017. MSJ at 1. After the company’s president retired in 2019,

RCAI’s Chairman and sole shareholder, Mark Turnbull, promoted Josloff to the position

of Executive Vice President. Turnbull Decl. (Doc. 144-1) ¶¶ 4, 11–12. In this position,

Josloff was the highest-ranking employee at RCAI. MSJ at 2. On October 4, 2021,

Turnbull appointed Josloff as President. Turnbull Decl. ¶ 10.

The events giving rise to this litigation occurred over the course of Josloff’s tenure

as President and Executive Vice President. Four days after promoting Josloff to President,

Turnbull asserts that he discovered that Josloff directed RCAI’s controller, Heidi

Rodriguez, to pay him “unauthorized commissions, bonuses, and salary increases,” which

Turnbull asserts was in “direct contravention” of Board directives. MSJ at 5, 20;

Turnbull Decl. ¶¶ 13–32. This was “unauthorized,” according to Turnbull, because

Turnbull was the “sole individual with authority” to alter compensation, and he had made

that “clear” to Josloff. . ¶¶ 10, 12–13. Josloff disputes the characterization as

“unauthorized” because RCAI’s controller approved them, and Josloff states that Turnbull

was aware of his compensation. Resp. at 4–5. Believing Josloff’s actions to be unauthorized,

Turnbull admonished him and ordered Josloff to cease giving himself compensation

increases. Turnbull Decl.¶ 15. RCAI states that during this meeting, Josloff asked to raise

his salary and Turnbull refused. . ¶ 21. Turnbull told Josloff that he would develop a new

compensation package to be finalized after RCAI’s performance was assessed at the end of

the first quarter of 2022, ., but Turnbull discovered that soon thereafter Josloff again

directed the controller to raise his salary without Turnbull’s approval, . ¶ 22. According

to RCAI, throughout Josloff’s tenure as President, Josloff continued to direct RCAI’s

controller to award him compensation increases. . ¶¶ 22–23.

From 2020 to 2022, Josloff also allegedly engaged in other financial improprieties,

including taking unauthorized car and phone allowances, using company funds for personal

purchases, and hiring his wife as a salaried employee without director permission. .

¶¶ 24–32. Turnbull learned from the controller that Josloff had directed the controller to

approve his wife with company health insurance. . ¶ 38. When the RCAI Treasurer,

RCAI Secretary, and Turnbull confronted Josloff in April 2022, Josloff protested that his

wife was a “temporary, part-time” employee and that she did not receive benefits. . ¶ 38.

To hire his wife at RCAI, Josloff directed the controller to add her to payroll under her

maiden name. . ¶¶ 27, 38. Josloff does not dispute this fact but asserts that he had “full

authority” and “would have no reason to conceal his wife’s name when she had been using

it all along.” Resp. at 6–7. Josloff maintains that the “personal purchases” he made were for

company purposes only, that the car he used was “shared,” and that it was within Josloff’s

authority to alter cell phone allowances. . at 5. The personal charges to company credit

cards, according to RCAI, included personal medical expenses, “personal and recreational

travel, gifts, flowers, and baked goods for family members.” Turnbull Decl. ¶ 30.

After Turnbull rebuked Josloff for hiring his wife without authorization, on or about

April 8, 2022, Josloff allegedly transferred confidential information from company emails

and accounts to his personal email account, including vendor information, sales data, and

more. Turnbull Decl. ¶¶ 40–44. Josloff responds that he sent himself the information while

he was still employed and therefore “his actions were done through proper means for the

purpose of doing his job.” Resp. at 13. After meeting with RCAI employees to learn more

about Josloff’s actions, Turnbull terminated Josloff’s employment on April 14, 2022,

Turnbull Decl. ¶¶ 39, 44. After his termination, RCAI “also learned that [Josloff] had

unilaterally, and without any legitimate business reason, ordered the destruction” of

documents “to support RCAI’s ISO 9001 Certification.” MSJ at 5; Turnbull Decl.

¶ 33. Josloff denies those allegations, arguing that those files were on the controller’s

computer, which he could not access. Resp. at 9. Because Josloff called the controller before

his termination to report Turnbull for discrimination based on Turnbull calling him a

“f...ing Jew” earlier in April 2022, at 7, Josloff maintains that he was terminated “for

reporting religious discrimination,” at 1.

II. LEGAL STANDARD

Summary judgment is appropriate if no genuine dispute of material fact exists and

the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). A fact

is material if it “might affect the outcome of the suit under the governing law.”

, 477 U.S. 242, 248 (1986).

The movant always bears the initial burden of informing the district court of the

basis for its motion and identifying those parts of the record that demonstrate an absence

of a genuine issue of material fact. , 929 F.2d 604, 608

(11th Cir. 1991). When that burden is met, the burden shifts to the nonmovant to present

evidentiary materials (e.g., affidavits, depositions, exhibits, etc.) demonstrating that there

is a genuine issue of material fact which precludes summary judgment. A moving party

is entitled to summary judgment if the nonmoving party “fail[s] to make a sufficient

showing on an essential element of her case with respect to which she has the burden of

proof.” , 477 U.S. 317, 323 (1986).

The Court reviews the record evidence as identified by the parties and draws all

legitimate inferences in the nonmoving party’s favor. , 946 F.3d

1256, 1262 (11th Cir. 2020); , 527 F.3d 1253, 1268 (11th Cir. 2008).

“[W]hen the question before the district court is purely a question of law,” summary

judgment may be appropriately granted. , 91 F.4th 1061, 1070 (11th Cir.

2024). “The mere existence of a scintilla of evidence in support of the [nonmovant’s]

position will be insufficient; there must be evidence on which the jury could reasonably

find for the [nonmovant].” , 169 F.3d 1310, 1321 (11th Cir.

1999) (quoting , 477 U.S. at 252).

III. ANALYSIS

A. The Magistrate Judge’s Sanctions Order Against Josloff

As a threshold matter, Josloff relies on previously undisclosed evidence in his

response to RCAI’s motion for summary judgment, directly contradicting the Magistrate

Judge’s Sanctions Order. (Doc. 171). Josloff has demonstrated a long pattern of willful and

repeated noncompliance with discovery requirements in this case, ultimately culminating

in an order that “prohibit[ed Josloff] from relying on any arguments, information,

documents, or data not previously disclosed as discovery as of October 10, 2024.” (Doc.

154) at 6; (Doc. 171) at 2.

RCAI points out that Josloff disobeyed those orders and relies on evidence in his

response to the motion for summary judgment that he did not produce during discovery.

Reply. at 1; Cooperman Decl. (Doc. 172-1). erefore, that evidence previously

undisclosed by Josloff in his response is excluded from consideration in this Order.

B. RCAI’s Claims

1. Counts I & II: Misappropriation of Trade Secrets Under the FUTSA and

DTSA

RCAI brings both DTSA (Count I) and FUTSA (Count II) claims against Josloff.

The DTSA “largely mirrors” the FUTSA, and thus I discuss the claims concurrently.

, 959 F.3d 1288, 1311 n. 13 (11th Cir. 2020). To

prove a claim under the DTSA and FUTSA, RCAI “must demonstrate that (1) it possessed

a ‘trade secret’ and (2) the secret was misappropriated.”

, 898 F.3d 1279, 1297 (11th Cir. 2018) (quoting

, 678 F. App’x 839, 853 (11th Cir. 2017)). Under the FUTSA or

DTSA, a trade secret must “[d]erive[] 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 “[i]s the subject of efforts

that are reasonable under the circumstances to maintain its secrecy.” § 688.002(4), Fla.

Stat.; 18 U.S.C. § 1839(3) (similarly defining trade secret).

Entering into written confidentiality agreements, restricting access to the trade

secrets, and requiring the destruction of any copies of confidential materials are examples

of reasonable measures to protect trade secrets. ,

170 So. 3d 804, 809 n.1 (Fla. 3rd DCA 2014). “When there is no express agreement, the

party seeking protection must establish the existence of a ‘confidential relationship giving

rise to an implied obligation not to use or disclose’ a trade secret.”

, 990 F.3d 1364, 1372 (Fed. Cir. 2021)

(alterations adopted) (quoting , 426 So. 2d 1013, 1015 (Fla. 2d DCA

1983)) (applying Florida law).

RCAI argues that Josloff violated the FUTSA and DTSA because he forwarded

hundreds of emails and other documents containing trade secrets to his personal email

account. The information included “client contact information, lists of potential clients,

RCAI pricing structure and agreements, RCAI distributor information and sales data,

RCAI business and marketing strategy, RCAI sales information, and tracing reports.”

Turnbull Decl. ¶¶ 40–42. Because RCAI has not provided sufficient evidence showing

that the emails and documents constitute trade secrets, summary judgment is denied on

the DTSA and FUTSA claims.

As a threshold matter, RCAI has not shown that the alleged trade secrets “[d]erive[]

independent economic value” from being secret. § 688.002(4)(a), Fla. Stat. While it may

be true that RCAI had invested resources in developing the “information contained in the

documents” and the information is “highly valuable” to it, Turnbull Decl. ¶42, that does

not explain how the secrecy itself creates “independent economic value,” such as giving

RCAI a competitive advantage in its industry. § 688.002(4), Fla. Stat.; ,

678 F. App’x at 854 (explaining that price quota could not be a trade secret because it has

economic value only when disclosed); , 959 F.3d at 1311

(“[W]hether something is a trade secret is a question typically ‘resolved by a fact finder after

full presentation of evidence from each side.’ ” (quoting , 898 F.3d at

1298–99)). Therefore, summary judgment is due to be denied on RCAI’s DTSA and

FUTSA claims.

2. Count III: Conversion

“The elements of conversion [in Florida] are: 1) a taking of chattels; 2) with intent

to exercise ownership over them an ownership inconsistent with the real owner’s right of

possession.” , 368 So. 3d 1087, 1091 (Fla. 6th DCA

2023). A plaintiff must allege sufficient facts to “establish that he was in possession of the

goods, or entitled to possession, at the time of the conversion.”

, 847 So. 2d 1070, 1073 (Fla. 4th DCA 2003) (quoting W. PAGE

KEETON, ET AL., PROSSER AND KEETON ON TORTS, § 15, at 102–03 (5th ed. 1984));

, 51 So. 3d 1208, 1213 (Fla. 4th DCA 2011).

RCAI argues that Josloff is liable for conversion because he received unauthorized

commissions and bonuses, unilaterally increased his salary, took unauthorized car and

phone allowances, and charged thousands of dollars’ worth of personal expenses to RCAI

company credit cards. MSJ at 12–13; Turnbull Decl. ¶¶ 12–25, 30–32. (Doc.

144-6); Rodriguez Decl. (Doc. 144-5). This evidence shows conversion, as only Turnbull

had the authority to approve salary increases and bonuses, Turnbull Decl. ¶¶ 10, 12, and

Josloff points to no evidence that Turnbull approved them,

, 450 So. 2d 1157, 1161 (Fla. 3rd DCA 1984); Rodriguez Decl.

¶ 25. And using money for an improper purpose, like Josloff making personal charges on

RCAI company credit cards, (Doc. 144-6), constitutes conversion.

, 984 F. Supp. 2d 1283, 1306 (M.D. Fla. 2013) (“Withdrawing money

from an account and exercising wrongful dominion and control over the money is an act of

conversion.”) (applying Florida law).

Josloff argues that some of the expenses were “already approved” and insists again

that RCAI is bringing these claims to “de-credit” him. Resp. at 15. Josloff does not provide

any evidence supporting his assertion that the expenses at issue were previously approved

by RCAI, arguing only that the controller was aware of them. . at 5–6. Even if Josloff

provided evidence for his assertions that Turnbull and other RCAI employees ate some of

the office treats he purchased with company funds or that some of the purchases were used

for RCAI in some capacity, that does not prove that those purchases were approved by the

Turnbull. . And this contention does nothing to rebut the bulk of the other unauthorized

payments underlying RCAI’s claim, including commissions, bonuses, and salary increases.

Therefore, RCAI is entitled to summary judgment on its conversion claim.

3. Count IV: Civil Theft

To succeed on a claim for civil theft under Florida law, RCAI must show that Josloff

“(1) knowingly (2) obtained or used, or endeavored to obtain or use, [RCAI’s] property

with (3) ‘felonious intent’ (4) either temporarily or permanently to (a) deprive [RCIA] of

its right to or a benefit from the property or (b) appropriate the property to [Josloff’s] own

use or to the use of any person not entitled to the property.” ,

556 F.3d 1260, 1270 (11th Cir. 2009); § 772.11, Fla. Stat. A claim for civil theft is

“conversion plus criminal intent.”

,357 So. 3d 225, 230 (Fla. 3d DCA 2023) (emphasis omitted) (quoting

, 284 So. 3d 1097, 1099 (Fla. 4th DCA 2019)) The plaintiff must make a demand

for return of the property and wait 30 days before bringing a civil theft claim. § 772.11(1),

Fla. Stat.

RCAI shows that Josloff went to the controller and directed her to make the various

increases to his salary and to pay him bonuses and commissions, despite being admonished

not to do so. Turnbull Decl. ¶¶ 10–23; Rodriguez Decl. ¶¶ 23–29. These changes were

“unauthorized,” according to RCAI, because only Turnbull had the authority to increase

Josloff’s compensation, yet Josloff went straight to the controller. . ¶ 10. RCAI

demanded that Josloff return the property over 30 days before filing its Amended

Complaint, but he did not comply. MSJ at 11 n.1; Turnbull Decl. ¶ 45; (Doc. 144-4).

RCAI has shown “felonious intent” through evidence that Josloff was informed of the

unauthorized nature of his actions yet continued to unilaterally increase his compensation

by going directly to RCAI’s controller. , 456 F.3d 1316,

1327 (11th Cir. 2006) (explaining that, under Florida law, “felonious intent” requires

“actual knowledge” and affirming summary judgment in defendant’s favor on civil theft

claim because the plaintiff failed to show that where there was evidence that defendant

used its property “with actual knowledge that its use was unauthorized”).

Josloff responds that he has “provide[d] material evidence showing these accusations

are being used as blatant retaliation and are false and baseless” and are “a product of

[Turnbull’s] delusion and fantasy.” Resp. at 14. Josloff points to no admissible evidence

supporting these statements. Nor does Josloff identify a retaliation defense for civil theft.

Without presenting any evidence, Josloff fails to establish that there “is a genuine issue of

material fact that precludes summary judgment,” and RCAI is entitled to summary

judgment on its civil theft claim. , 929 F.2d at 608.

4. Counts V & VI: Fraud & Fraudulent Concealment

Fraudulent concealment in Florida requires that the plaintiff show: “(1) the

[defendant] concealed or failed to disclose a material fact; (2) the [defendant] knew or

should have known the material fact should be disclosed; (3) the [defendant] knew their

concealment of or failure to disclose the material fact would induce the plaintiffs to act; (4)

the [defendant] had a duty to disclose the material fact; and (5) the plaintiffs detrimentally

relied on the misinformation.” ., 175 So. 3d 687, 691 (Fla.

2015) (quoting , 95 So. 3d 254, 259 (Fla. 4th DCA 2012)).

RCAI describes fraud under Florida law as “identical,” so I address them jointly. MSJ at

15 (quoting , 645 F. Supp. 2d 1107, 1119 (M.D. Fla.

2009)).

RCIA contends that Josloff engaged in fraudulent concealment by failing to disclose

“important information to Turnbull,” including “information regarding how the

corporation’s funds were being spent and Josloff’s actual or prospective conflicts of interest.”

MSJ at 15. Even assuming that RCAI’s evidence shows that Josloff concealed or failed to

disclose a material fact and had an affirmative duty to do so, RCAI fails to offer sufficient

evidence about how those acts or omissions induced RCAI to act. And of course, “as a

general rule, summary judgment is not appropriate to resolve a fraud claim under Florida

law.” , 989 So. 2d 1244, 1247 (Fla. 1st DCA 2008).

5. Count VII: Breach of the Fiduciary Duty of Loyalty

“The elements necessary to state of cause of action for breach of fiduciary duty [in

Florida] are: 1) existence of a fiduciary duty; 2) a breach of that duty; and 3) damage

proximately caused by that duty.” ., 336 So.

3d 372, 373 (Fla. 5th DCA 2022). “Florida courts have recognized that corporate officers

and directors owe [] a duty of loyalty [] to the corporation that they serve.”

, 155 So. 3d 399, 403 (Fla. 1st DCA 2014). One with a fiduciary duty “cannot

assume positions contrary to the interests of the corporation.”

, 104 So. 2d 642, 644 (Fla. 2d DCA 1958). Nor may he “make a private

profit from his position or, while acting in that capacity, acquire an interest adverse to that

of the corporation.” , 185 So. 2d 516, 521 (Fla. 2d DCA 1966).

RCAI shows that Josloff breached his duty of loyalty to the company by engaging

in several disloyal acts. As President of RCAI, Josloff had a fiduciary duty of loyalty to the

corporation. , 155 So. 3d at 403. By unilaterally increasing various earnings and

surreptitiously hiring his wife at the company, Josloff made a “private profit” from his

position, thereby breaching his duty of loyalty. , 185 So. 2d at 521. Similarly,

Josloff’s destruction of documents without reason and sending himself confidential

information just before his termination were actions adverse to the interests of RCAI. .;

Turnbull Decl. ¶¶ 33–34, 40–41. Therefore, RCAI is entitled to summary judgment on

its breach of fiduciary duty claim.

RCAI is entitled to summary judgement in its favor on the following claims:

conversion, civil theft, and breach of fiduciary duty. As to conversion, RCAI’s evidence

proves that the damages are $44,590.54, which equals the personal expenses that Josloff

charged to his company credit card. Rodriguez Decl. ¶ 22. The damages for the civil theft

claim are $438,855.30, which consists of the unauthorized bonuses and commissions,

increased salary, car allowances, phone allowances, as well as treble damages under §

772.11, Fla. Stat. MSJ at 12. Damages for the breach of fiduciary duty consist of the

amount that RCAI paid for Josloff’s wife’s employment, $2,077.69, and for the recreation

of the documents that Josloff destroyed, $13,400. MSJ at 14–15. The total amount of

damages for the claims upon which RCAI is entitled to summary judgment is $498,923.53.

C. Josloff’s Counterclaims

1. Count I: Religious Discrimination Under the NJLAD

The NJLAD prohibits unlawful discrimination against individuals in the terms and

conditions of employment because of their religion. N.J. Stat. § 10:5-12. The traditional

burden-shifting analysis from applies to claims under

NJLAD. 411 U.S. 792 (1973); , 887 A.2d 1170, 1182

(N.J. Super. Ct. App. Div. 2005). If the plaintiff makes a prima facie case, the employer

must then present “evidence of ‘legitimate, non-discriminatory reasons’ that support its

employment actions.” 887 A.2d at 1182. Once the employer does so, “the

burden shifts back to plaintiff to prove that the stated reasons were a pretext for

discrimination.” . To show pretext, the plaintiff “must demonstrate such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the defendant’s

proffered legitimate reasons for its action that a reasonable factfinder could rationally find

them ‘unworthy of credence[.]” , 883 A.2d 387, 396 (N.J. Super.

Ct. App. Div. 2005) (quoting , 32 F.3d 759, 765 (3d Cir. 1994)).

RCAI is entitled to summary judgment on Josloff’s NJLAD claim. Josloff fails to

address his NJLAD claim in his response, as he only mentions the FCRA when addressing

his religious discrimination claim. Resp. at 15–16. But even reading Josloff’s response

liberally, he does not point to evidence showing a genuine dispute of material fact.

Assuming Josloff established a prima facie case, Josloff does not point to evidence from

which a reasonable jury could find that RCAI’s reasons for terminating him were a pretext

for religious discrimination. RCAI contends it terminated Josloff in response to finding

out that Josloff had put his wife on the company payroll, took unauthorized commissions

and bonuses, and stole confidential information, and then subsequently lied about it. MSJ

at 20; Reply at 2–3.

Josloff asserts he has “material evidence” to prove he “was not lying” to the company.

Resp. at 7. That “material evidence” consists of tax forms listing his wife as a part-time

RCAI employee, a text message by an unidentified person calling Turnbull “crazy,” and

Josloff’s personal belief that Turnbull was an alcoholic. . First, the sanction order

precludes use of any of this untimely “evidence.” (Doc. 171). Second, much is likely

inadmissible at trial and thus irrelevant for a Rule 56 motion. , 88

F.3d 1573, 1584 (11th Cir. 1996), , 520 U.S.

781 (1997). Third, the evidence fails to controvert the evidence of dishonesty, RCAI’s

purported basis of termination. That his wife earned little from RCAI does not rebut the

allegation that Josloff had her added to payroll with her maiden name. And even if some

disliked or found Turnbull unstable for various reasons, those views do not undermine

RCAI’s business reason for terminating Josloff.

., 196 F.3d 1354, 1363 n.3 (11th Cir. 1999) (“An employer ‘may fire an employee for a

good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long

’ ” (emphasis in the original) (quoting

., 151 F.3d 1321, 1324 n.16 (11th Cir. 1998) (per

curiam))). Because Josloff has not produced evidence showing that RCAI’s reasons for

terminating him contained “implausibilities, inconsistencies, incoherencies, or

contradictions,” RCAI is entitled to summary judgment on the NJLAD claim.

887 A.2d at 1187 (quoting , 883 A.2d at 396).

2. Count II: Religious Discrimination Under the FCRA

The FCRA prohibits discrimination, or retaliation for claiming discrimination, on

the basis of a protected characteristic. § 760.10–11, Fla. Stat. As a threshold matter,

“an employee must file a complaint with the Florida Commission on Human Relations

[FCHR] or the EEOC within 365 days of the alleged FCRA violation.”

, 816 F. App’x 397, 401 (11th Cir. 2020) (per curiam). “The presuit filing

of an administrative complaint with the Florida Commission on Human Relations or

EEOC] is a condition precedent that must be pled when filing the civil action.”

, 308 So. 3d 1058, 1062 (Fla. 5th DCA 2020).

Josloff failed to exhaust his administrative remedies by filing a complaint of

discrimination with either the EEOC or FCHR, and therefore summary judgment must

be granted in RCAI’s favor on this claim. Josloff does not allege in his counterclaim that

he filed a complaint with the EEOC or FCHR before bringing his counterclaim, Am.

Counterclaim ¶¶ 95–123, and Josloff also does not dispute that he failed to do so in his

response, Resp. at 15–16. Because filing a charge of discrimination with the EEOC or

FCHR is a “condition precedent” to filing suit and Josloff presents no evidence that he did,

summary judgment on this claim is due to be granted in RCAI’s favor. ,

308 So. 3d at 1062; , 505 F.3d 1173, 1205 (11th

Cir. 2007) (upholding district court’s grant of summary judgment based on failure to

exhaust administrative remedies before filing an FCRA claim).

3. Counts III & IV: Negligent Misrepresentation and Fraud in the Inducement

To establish fraud in Florida, a plaintiff must allege: “(1) a false statement

concerning a material fact; (2) the representor’s knowledge that the representation is false;

(3) an intention that the representation induce another to act on it; and, (4) consequent

injury by the party acting in reliance on the representation.” , 480 So. 2d

625, 627 (Fla. 1985). Negligent misrepresentation requires that a plaintiff show: “(1) the

defendant made a misrepresentation of material fact that he believed to be true but which

was in fact false; (2) the defendant was negligent in making the statement because he should

have known the representation was false; (3) the defendant intended to induce the plaintiff

to rely . . . on the misrepresentation; and (4) injury resulted to the plaintiff acting in

justifiable reliance upon the misrepresentation.”

, 66 So. 3d 306, 309 (Fla. 1st DCA 2011) ( ., 883 So. 2d

826, 832 (Fla. 5th DCA 2004)).

Josloff’s claims sounding in fraud fail because he presents no admissible evidence to

support them, and in particular, how he detrimentally relied upon them. Josloff alleges that

“he was promised by Turnbull that he would receive an employment contract and full

relocation package for himself and his family,” Resp. at 16, and that Turnbull made the

promises with “no intention of actually providing” them, Am. Counterclaim ¶ 127;

¶¶ 137–51. Though Turnbull admits to informing Josloff he would develop a new

compensation package, Turnbull Decl. ¶ 21, the record contains no facts showing that

Turnbull knew his statements were false or what the compensation package would include.

Most importantly, Josloff offers no admissible evidence to explain how the representations

were material or how he relied upon them to his detriment. Reply at 3–4. Because Josloff

fails to make a sufficient showing as to his fraud claims, RCAI is entitled to summary

judgment. , 477 U.S. at 323.

4. Count V: Defamation

The elements of a claim for defamation in Florida are: “(1) publication; (2) falsity;

(3) actor must act 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) statement must be defamatory.”

997 So. 2d 1098, 1106 (Fla. 2008). Under the Florida litigation privilege, “absolute

immunity must be afforded to any act occurring during the course of a judicial proceeding

. . . so long as the act has some relation to the proceeding.”

, 950 So. 2d 380, 383–84 (Fla. 2007) (quoting

, 639 So. 2d

606, 608 (Fla. 1994)) (applying the litigation privilege to “all causes of action, whether for

common-law torts or statutory violations”); , 217 So. 3d 68,

69–70 (Fla. 2017).

Because Josloff’s defamation claim appears premised upon RCAI’s lawsuit being

“false, fraudulent, and defamatory,” Am. Counterclaim ¶¶ 152–59, Florida’s litigation

privilege bars it. Josloff claims that RCAI defamed him because an employee conducted an

“audit” after Josloff was terminated and then “in retaliation for Josloff alleging

discrimination, [RCIA] filed this false, fraudulent, and defamatory lawsuit.” ¶¶ 154–

55. Josloff alleges “[t]hese statements were false, and [RCIA] knew that they were false[,]”

¶ 156, but does not explain which statements precisely he alleges were false other than

referencing the lawsuit, . To the extent that any of the “defamatory” statements were not

connected to the lawsuit, Josloff neither identifies what those statements are nor points to

any evidence in the record supporting his claim, including the requisite special damages for

defamation. ¶¶ 152–59; , 66 So. 2d 495, 497

(Fla. 1953); , 322 So. 3d 110, 114 & n.2 (Fla. 4th DCA 2021). Because

Josloff, as the nonmovant, has failed to point to any evidence showing a genuine issue of

material fact, RCAI is entitled to summary judgment on Josloffs defamation claim. See

Clark, 929 F.2d at 608.1

IV. CONCLUSION

Accordingly, the following is ORDERED:

1. Plaintiffs Motion for Summary Judgment (Doc. 144) as to its claims is

GRANTED as to Counts III, IV, VII, and VII, and DENIED as to Counts

I, Il, V & VI.

2. Plaintiffs Motion for Summary Judgment (Doc. 144) as to Defendant’s

counterclaims is GRANTED.

3. The parties are directed to file an amended case management report no later

than April 7, 2025.

ORDERED in Tampa, Florida, on March 31, 2025.

athryn’Kimball Mizelle

United States District Judge

the first time in this action, Josloff mentions in his response allegations of “blacklisting” and

breach of fiduciary duty against RCAI. Resp. 16-17. Josloff may not bring new claims in response

to a motion for summary judgment. Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315

(11th Cir. 2004).

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