Opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 24-cv-24110-ALTMAN

CORE DISTRIBUTION,

Plaintiff,

v.

THE WORLD TRADE CORPORATION, et al.,

Defendants.

__________________________________________/

ORDER

The Defendants have filed a Motion to Dismiss the Plaintiff’s Complaint (the “MTD”) [ECF

No. 27]. Having carefully reviewed the briefing, the record, and the governing law, we GRANT the

motion.

THE FACTS1

“For decades,” our Plaintiff, Core Distribution, “has specialized in developing extendable

ladders.” Complaint (“Compl.”) [ECF No. 1]. ¶ 13. “Since on or about 2011 through 2021, Core had

a contractual relationship with Sherwin Williams pursuant to which Core acted as a vendor selling and

providing Core’s extendable ladders to Sherwin Williams.” Id. ¶ 16. “During that timeframe, Core

shipped over 217,000 products to Sherwin Williams at a wholesale value of over $31,000,000.00.” Id.

¶ 17. “On November 30, 2020, January 19, 2021, and February 16, 2021, Sherwin Williams placed

orders for 14,955 Units, totaling $3,585,217.50.” Id. ¶ 18. “On or about March 3, 2021, a representative

1 We accept the allegations of the Complaint [ECF No. 1] as true for purposes of this Order.

See Dusek v. JPMorgan Chase & Co., 832 F.3d 1243, 1246 (11th Cir. 2016) (“In deciding a Rule 12(b)(6)

motion to dismiss, the court must accept all factual allegations in a complaint as true and take them in

the light most favorable to plaintiff, but ‘legal conclusions without adequate factual support are entitled

to no assumption of truth.’” (quoting Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (cleaned

up))).

of Sherwin Williams emailed Core Distribution seeking to cancel certain orders, though ultimately

confirming the orders should be left as originally scheduled.” Id. ¶ 19. “On or about March 12, 2021,”

Sherwin Williams again “cancelled purchase orders for 4,620 Products, totaling $966,380.00.” Id. ¶ 20.

“On or about March 16, 2021, Sherwin Williams cancelled the remaining purchase orders.” Id. ¶ 21.

Around the time that Sherwin Willaims canceled these purchase orders, Sherwin Williams’

Lead Buyer, Michael Young, “formally invited Core to the annual Line Review held by Sherwin

Williams for presentations of products, as Core had been previously invited for over 10 years.” Id.

¶ 23. Core accepted the invitation, but its “2021 Line Review meeting was never confirmed by Mr.

Young, who ceased responding to Core[.]” Id. ¶ 24.

But that was just the beginning of our Plaintiff’s troubles. Francisco Cruz was the Plaintiff’s

“long-time employee and Chief Operating Officer[.]” Id. ¶ 25. “On July 9, 2021, after discovering theft

of monies by Cruz, Core was forced to file a lawsuit against Cruz in the Fourth Judicial District in the

State of Minnesota[.]” Id. ¶ 27; see also Core Dist., Inc. v. Cruz, 27-cv-21-8710 (Minn. Dist. Ct. 2021) (the

“Minnesota Action”).2 The Minnesota Action alleged ten claims against Cruz: Breach of Fiduciary

Duty (Count I); Misappropriation, Waste, and Misue of Assets (Count II); Conversion (Count III);

Unjust Enrichment (Count IV); Civil Liability for Theft under MINN. STAT. § 604.14 (Count V); Civil

Liability for Theft under MINN. STAT. § 609.53 (Count VI); Replevin (Count VII); Accounting (Count

2 The Plaintiff cites case number “No.: 27-CV-27-8710.” Compl. ¶ 27. A search of the

Minnesota Court Records Online, see Minnesota Judicial Branch, Minnesota Court Records Online,

https://publicaccess.courts.state.mn.us/, shows that this case number doesn’t exist. After conducting

our own search, we realized that the correct case number is 27-cv-21-8710. We’ll take judicial notice of

the relevant state-court records for that case under Federal Rule of Civil Procedure 201 because they

“can be accurately and readily determined from sources whose accuracy cannot reasonably be

questioned.” Paez v. Sec’y, Fla. Dep’t of Corr., 947 F.3d 649, 652 (11th Cir. 2020) (quoting FED. R. EVID.

201(b)); see also Cave v. Stone, 2021 WL 4427451, at *1 (S.D. Fla. Sept. 27, 2021) (Altman, J.) (“Federal

Rule of Evidence 201 permits a federal court to take judicial notice of state-court records because,

generally, those records ‘can be accurately and readily determined from sources whose accuracy cannot

reasonably be questioned.’” (quoting FED. R. EVID. 201(b))).

VIII); Constructive Trust (Count IX); and Injunctive Relief (Count X). See Minnesota Action,

Complaint [DE 1]. On October 16, 2023, “a jury rendered a verdict that Cruz breached his fiduciary

duties to Core [ ] as an employee and officer and that Cruz was unjustly enriched as a result, owing

[Core] total damages in the amount of $133,231.13.” Compl. ¶ 27 n.2.

Here’s where our case comes in. According to the Complaint, “since 2017 [Cruz] was already

misdirecting Core’s corporate opportunities to [the World Trade Corporation (‘WTC’)] and Austram,

among several others.” Id. ¶ 29. And, “[i]mmediately following his termination, Cruz began working

with WTC and Austram, where he is a partial owner.” Id. ¶ 30. Our Plaintiff alleges that, during the

Minnesota Action, it learned that Austram and WTC “entered into a contractual relationship with

Sherwin Williams to supply ladders that infringe Core’s patents and trademarks.” Id. ¶ 32; see also id. ¶

31 (“Core subsequently learned that [Francisco] Cruz, [Alexander] Joch, [Christopher] Joch, and

[Frederick] Joch, through Austram and WTC, were selling ladders to Sherwin Williams under the

brand name Austram and that these Austram ladders are covered by Core’s ’912 Patent.”). “In fact,

Austram and WTC were allowed to, and did, present Core’s patented and trademarked products to

Mr. Young of Sherwin Williams at the 2021 Line Review after Core was disinvited to the same.” Id. ¶

33.

On April 8, 2024, counsel for the Plaintiff sent a letter to Alexander and Frederick Joch,

alleging that WTC “is selling a ladder, the Austram Telescoping Ladder, that infringes Core

Distribution’s ’912 Patent.” Infringement Letter [ECF No. 1-11] at 1. The Infringement Letter

addressed Alexander Joch as the “President” of WTC and included both Alexander’s and Fred Joch’s

WTC emails. Ibid.

On October 23, 2024, our Plaintiff filed this case against four individuals—Francisco Cruz,

Alexander Joch, Christopher Joch, and Frederick Joch (the “Individual Defendants”)—and two

corporations, Austram and WTC (the “Corporate Defendants”). See generally Complaint. The

Complaint advances three counts: Civil Conspiracy (Count I), see id. ¶¶ 50–56; Tortious Interference

with an Advantageous Business Relationship (Count II), see id. ¶¶ 57–63; and Patent Infringement

(Count III), see id. ¶¶ 64–69. Our Defendants have responded with a Motion to Dismiss, asking us to

dismiss all counts against the Individual Defendants and Counts I and II against the Corporate

Defendants. See generally MTD.

THE LAW

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To meet this

“plausibility standard,” a plaintiff must “plead[ ] factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550

U.S. at 556). The standard “does not require ‘detailed factual allegations,’ but it demands more than

an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at

555). “[T]he standard ‘simply calls for enough fact to raise a reasonable expectation that discovery will

reveal evidence’ of the required element.” Rivell v. Private Health Care Sys., Inc., 520 F.3d 1308, 1309–10

(11th Cir. 2008) (quoting Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Iqbal, 556 U.S. at 678. On a motion to dismiss, “the court must accept all factual

allegations in a complaint as true and take them in the light most favorable to plaintiff.” Dusek v.

JPMorgan Chase & Co., 832 F.3d 1243, 1246 (11th Cir. 2016).

ANALYSIS

The Defendants attack the Complaint on seven grounds: First, they say that we lack personal

jurisdiction over Defendant Cruz. Second, they argue that our District isn’t the proper venue for the

case against the Individual Defendants. Third, they contend that Alexander Joch was improperly

served. Fourth, they ask us to dismiss Count II because it fails to state a claim and because it’s barred

by the doctrines of issue and claim preclusion. Fifth, they assert that the Complaint fails to plausibly

state a claim for conspiracy under Count I. Sixth, they maintain that the Plaintiff failed to comply with

the patent marking statute. And seventh, they argue that the Plaintiffs haven’t sufficiently pled patent

infringement against the Individual Defendants.

I. We Have Personal Jurisdiction Over Cruz

“For an individual, the paradigm forum for the exercise of general jurisdiction is the

individual’s domicile.” Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). “General jurisdiction, as its

name implies, extends to any and all claims brought against a defendant.” Ford Motor Co. v. Mont. Eighth

Jud. Dist. Ct., 592 U.S. 351, 358 (2021) (quotations omitted). The Defendants argue that “[p]ersonal

jurisdiction is not properly alleged over Defendant Mr. Cruz because he is domiciled in Minnesota,

not Florida, as CDI now correctly acknowledges.” MTD at 28.3 But the Complaint alleges that the

“Defendant, Cruz, resides in the Southern District of Florida.” Compl. ¶ 8. And “we may presume

that, until controverted by fact, he is domiciled at his current residence[.]” Molinos Valle Del Cibao, C.

3 Admittedly, the Plaintiff later filed a Certificate of Interested Persons (“CIPs”) [ECF No.

17], in which it suggested that “Francisco Cruz” is a “citizen of the state of Minnesota[.]” CIPs at 2.

Unfortunately for Cruz, the Plaintiff never amended its Complaint to allege that Cruz is a citizen of

Minnesota—and we must treat the Complaint’s well-pled allegations as true. A plaintiff, after all,

cannot amend its complaint via a notice on the docket. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d

949, 959 (11th Cir. 2009) (“A court’s review on a motion to dismiss is limited to the four corners of

the complaint.”); see also Norrell v. Phenix City Pub. Transp. (PEX), 2024 WL 4759771, at *3 (M.D. Ala.

Nov. 12, 2024) (Adams, J.) (“A notice is not a proper mechanism for amending a complaint. Instead,

a complaint is amended in accordance with Rule 15(a) of the Federal Rules of Civil Procedure[.]”).

Tellingly, the Defendants cite no authority for the proposition that the CIPs should control

our analysis. See generally MTD. “The law is well-settled that ‘[p]erfunctory, undeveloped arguments

without discussion or citation to pertinent legal authority are waived.’” Michaels v. Sasser’s Glass Works

Inc., 662 F. Supp. 3d 1223, 1243 (S.D. Fla. 2023) (Altman, J.), aff’d, 2025 WL 588648 (11th Cir. Feb.

24, 2025) (quoting Mahaffey v. Ramos, 588 F.3d 1142, 1146 (7th Cir. 2009)); see also S.D. FLA. L.R.

7.1(a)(1) (“Every motion when filed and served shall incorporate a memorandum of law citing

supporting authorities[.]”). So, we’ll accept the allegations of the Complaint for now and treat Cruz as

a resident of Florida.

por A. v. Lama, 633 F.3d 1330, 1342 (11th Cir. 2011) (citing Slaughter v. Toye Bros. Yellow Cab Co., 359

F.2d 954, 956 (5th Cir. 1966) (describing a “presumption of domicile in the jurisdiction where the

party is a resident at the crucial time”)). The burden therefore shifts to the Defendants to “challenge[ ]

jurisdiction by submitting affidavit evidence in support of its position[.]” Diulus v. Am. Express Travel

Related Servs. Co., Inc., 823 F. App’x 843, 848 (11th Cir. 2020). But the Defendants failed to present any

evidence (affidavits or otherwise) of Cruz’s domicile in Minnesota. Their unsupported assertions in

the Motion to Dismiss aren’t evidence of anything—and they’re woefully insufficient to meet their

burden of production here. See Bracewell v. Nicholson Air Servs., Inc., 748 F.2d 1499, 1504 (11th Cir. 1984)

(“If the defendant raises a question of personal jurisdiction and the district court elects to decide the

question solely on the basis of the pleadings and affidavits, it must accept as true those allegations of

the complaint which are not controverted by defendant’s evidence and deny the motion to dismiss if

the plaintiff presents a prima facie case of jurisdiction[.]”). Because the Plaintiff alleges that Cruz

resides in Florida—and since the Defendants present no evidence to the contrary—we have general

personal jurisdiction over Cruz here (at least for now).4

II. Venue is Proper for the Individual Defendants

The Defendants next ask us to dismiss the Complaint against the Individual Defendants

because “the only venue allegations in the Complaint relate to the Corporate Defendants.” MTD at

26. “All claims against the Individual Defendants,” it argues, “should accordingly be dismissed under

Rule 12(b)(3).” Ibid. We disagree.

“Whether venue is proper under [28 U.S.C.] § 1400(b) is an issue unique to patent law and is

governed by Federal Circuit law.” In re ZTE (USA) Inc., 890 F.3d 1008, 1012 (Fed. Cir. 2018). “The

4 Of course, if the Certificate of Interested Persons is an indication that the Plaintiff knows

Cruz doesn’t reside in Florida, then we think it incumbent on the Plaintiff to rectify this

misunderstanding immediately. And, it goes without saying, in that case, we wouldn’t have general

personal jurisdiction over Cruz in Florida.

plaintiff has the burden of establishing proper venue under that provision.” Celgene Corp. v. Mylan

Pharms. Inc., 17 F.4th 1111, 1119 (Fed. Cir. 2021). Section § 1400(b) provides that:

Any civil action for patent infringement may be brought in the judicial district where

the defendant resides, or where the defendant has committed acts of infringement and

has a regular and established place of business.

§ 1400(b). In other words, “[t]o establish venue, a plaintiff may show either that the defendant ‘resides’

in a particular district or that it ‘has committed acts of infringement and has a regular and established

place of business’ there.” Celgene, 17 F.4th at 1119 (quoting § 1400(b)).

Our Plaintiff alleges that the Individual Defendants all “reside[ ] in the Southern District of

Florida.” Compl. ¶¶ 5–8; see also Minn. Min. & Mfg. Co. v. Eco Chem., Inc., 757 F.2d 1256, 1265 (Fed.

Cir. 1985) (“The patent venue statute makes no distinction between individuals and corporations[.]”).

And, again, the Individual Defendants failed to submit any evidence challenging this allegation. See

generally Docket. That’s really the end of that. See Est. of Myhra v. Royal Caribbean Cruises, Ltd., 695 F.3d

1233, 1239 (11th Cir. 2012) (considering a motion under 12(b)(3) and noting that, although “we take

the facts of the complaint as true, we do so only to the extent they are uncontroverted by defendant’s

affidavits” (cleaned up)).5 We therefore conclude that venue is proper in the Southern District of

Florida.6

5 Despite challenging our personal jurisdiction over Defendant Cruz based on his domicile, see

MTD at 28, the Defendants fail to raise this argument as to venue and have thus forfeited the argument

for now, see United States v. Campbell, 26 F.4th 860, 873 (11th Cir. 2022) (“[F]ailure to raise an issue in

an initial brief . . . should be treated as a forfeiture of the issue, and therefore the issue may be raised

by the court sua sponte [only] in extraordinary circumstances.”); Hamilton v. Southland Christian Sch.,

Inc., 680 F.3d 1316, 1319 (11th Cir. 2012) (“[T]he failure to make arguments and cite authorities in

support of an issue waives it.”); In re Egidi, 571 F.3d 1156, 1163 (11th Cir. 2009) (“Arguments not

properly presented . . . are deemed waived.”).

6 A final note on venue. In its Response, the Plaintiff relies on § 3591. See Resp. at 12 (“[V]enue

is proper in the Southern District of Florida under the provisions of 28 U.S.C. §§ 1391(b) and (c) and

1400(b)[.]”). But that’s not quite right. “The Supreme Court in TC Heartland reaffirmed that § 1400(b)

is the sole and exclusive provision controlling venue in patent infringement actions.” Celgene, 17 F.4th

at 1120 (citing TC Heartland v. Kraft Foods Grp. Brands, LLC, 581 U.S. 258, 270 (2017)); see also In re

Micron Tech., Inc., 875 F.3d 1091, 1099 (Fed. Cir. 2017) (observing that TC Heartland “sever[ed]

III. Defendant Alexander Joch was Properly Served

Next, the Defendants argue that Defendant Alexander “Joch received ‘insufficient service of

process’ under FLA. STAT. § 48.031(1)(a), so all claims against him should moreover be dismissed under

Rule 12(b)(5)[.]” MTD at 27. In support of this contention, the Defendants say the following:

Substituted service of process was attempted on Alexander Joch on November 1, 2024

by delivering the complaint and summons to Dinara Nefedova at 791 Crandon Blvd,

Key Biscayne, FL 33149. However, 791 Crandon Blvd is not Alexander Joch’s “usual

place of abode.” Leaving a copy of the summons and complaint at a location that is

not the defendant’s “usual place of abode,” even with a resident of that location, is

insufficient service of process.

Ibid. (quoting Joch Return of Service [ECF No. 10]). The Plaintiff disagrees, insisting that “Joch has

publicly represented his place of residence at the address of 791 Crandon Blvd, Key Biscayne, FL

33149.” Resp. at 13. Again, the Defendants adduce no evidence for their position.

Under Rule 12(b)(5), a defendant may move to dismiss a complaint because of “insufficient

service of process.” FED. R. CIV. P. 12(b)(5). “While a plaintiff bears the ultimate burden of proving

valid service of process, a return of service that is regular on its face is presumed to be valid absent

clear and convincing evidence presented to the contrary.” Robles-Martinez v. Diaz, Reus & Targ, LLP,

88 So. 3d 177, 179 (Fla. 3d DCA 2011)). “‘Regular on its face’ means the return of service attests to

all the information required by the service statute.” Ibid. “This information includes a defendant’s

usual place of abode.” Ibid.; see also S.E.C. v. Internet Sols. for Bus., Inc., 509 F.3d 1161, 1166 (9th Cir.

2007) (“A signed return of service constitutes prima facie evidence of valid service which can be

overcome only by strong and convincing evidence.” (citations omitted)).

§ 1400(b) from § 1391(c)”). So, if the amended complaint asserts that any of the Individual Defendants

reside outside our District, the Plaintiff must establish that each Individual Defendant himself “has

committed acts of infringement and has a regular and established place of business” in our District.

§ 1400(b).

The Joch Return of Service appears to include all the information Florida law requires. Here’s

what Florida’s service-of-process statute has to say: “Service of original process is made by delivering

a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading

or paper or by leaving the copies at his or her usual place of abode with any person residing therein

who is 15 years of age or older and informing the person of their contents.” FLA. STAT. § 48.031(1)(a).

And our Plaintiff filed a return of service that states precisely that:

[The process server] substitute served by delivering a true copy of the Summons,

Complaint and Exhibits; Order in Cases with Multiple Defendants with the date and

hour of service endorsed thereon by me, to: Dinara Nefedova as Co-Resident at the

address of: 791 Crandon Blvd, Key Biscayne, FL 33149, the within named person’s

usual place of Abode, who resides therein, who is fifteen (15) years of age or older

and informed said person of the contents therein, in compliance with state statutes.

Joch Return of Service at 1 (emphasis altered); see also Friedman v. Schiano, 777 F. App’x 324, 330 (11th

Cir. 2019) (“The returns in this case were regular on their face: they named Schiano (in his individual

capacity or as a registered agent); they stated the documents that were delivered; they identified

Skripova as a co-resident 15 years of age or older to whom the documents were delivered; and they

listed 3840 as Schiano’s usual place of abode. The burden thus shifted to Schiano to invalidate the

returns via clear and convincing evidence.”).

Because the Joch Return of Service includes every element Florida law requires, see FLA. STAT.

§ 48.031, the burden shifts to the Defendants to prove that the returns are invalid by clear and

convincing evidence. See Friedman, 777 F. App’x at 328 (“Because the verified returns of service were

valid on their face . . . [the Defendant] bore the burden under Florida law of proving by clear and

convincing evidence that [the address on the return of service] was not his usual place of abode at the

time of service.”). They haven’t met that burden. Instead, they allege only that “791 Crandon Blvd is

not Alexander Joch’s ‘usual place of abode.’” MTD at 27. But they (again) present no evidence for this

proposition—no affidavits, no declarations, no mail addressed to Joch at a different place. Florida

courts have been clear that “a defendant may not impeach the validity of the summons with a simple

denial of service, but must present ‘clear and convincing evidence’ to corroborate his denial.” Telf Corp.

v. Gomez, 671 So. 2d 818, 819 (Fla. 3d DCA 1996). The Defendants’ conclusory and “simple denial of

service” is thus insufficient to support their 12(b)(5) contentions. See Carter v. Verizon Wireless, 2015

WL 13310395, at *1 (M.D. Fla. Oct. 14, 2015) (Kovachevich, J.) (“[D]ue to the fact that the Defendant

has only made conclusory allegations in support of its argument that the Plaintiff’s service of the

Complaint was ineffective, the Motion does not provide an adequate record from which to support

dismissal of the Complaint under Federal Rule 12(b)(5).”).

IV. Count II: Tortious Interference with a Business Relationship

Count II alleges that the “Defendants intentionally and unjustifiably interfered with Core’s

advantageous business relationship with Sherwin Williams by contacting Mr. Young, preventing Core

from attending 2021 Line Review, taking Core’s place at the 2021 Line Review and presenting Core’s

patented products, and replacing Core as a vendor for the same products.” Compl. ¶ 60. “As a direct

result of [the] Defendants’ intentional and unjustified interference with this advantageous business

relationship,” the Plaintiff says, “the purchase orders were canceled and this advantageous business

relationship between Core and Sherwin Williams has been lost.” Id. ¶ 61. The Defendants advance

two arguments for dismissal. First, they say that Count II is barred by the doctrines of claim and issue

preclusion because “the issue litigated in the Minnesota Action is identical to that in Count II—[the

Plaintiff] argued there, as here, that it suffered damages from losing its business relationship with

Sherwin.” MTD at 23. Second, they argue that Count II fails to state a claim because the Plaintiff

“repeatedly invokes the legal elements of tortious inference but fails to plead facts to show they are

plausibly satisfied.” Id. at 20. We agree that Count II fails to state a claim—though we disagree that it

is precluded.

a. Issue and Claim Preclusion

In support of their preclusion arguments, the Defendants claim that “the issue litigated in the

Minnesota Action is identical to that in Count II—[the Plaintiff] argued there, as here, that it suffered

damages from losing its business relationship with Sherwin.” Id. at 23. Putting aside Defendant Cruz

for a moment, we can easily dispose of this argument because the Defendants advance their preclusion

arguments against all the Defendants, even though the Minnesota Action was solely against Defendant

Cruz. See id. at 3 n.1 (“A prior Minnesota lawsuit between CDI and Individual Defendant Mr. Cruz[.]”);

id. at 22 (“[The Plaintiff] is barred by issue preclusion (collateral estoppel) from recovering damages

due to the alleged loss of its alleged business relationship with Sherwin.”); id. at 23 (“Thus, claim

preclusion bars [the Plaintiff] from asserting Count II against [the] Defendants.”).

“It is axiomatic that preclusion doctrines such as res judicata and collateral estoppel require

that the judgment or issues sought to be re-litigated are asserted against the same party or his privy.”

In re Air Crash near Rio Grande Puerto Rico on Dec. 3, 2008, 2016 WL 6916601, at *1 (S.D. Fla. Nov. 3,

2016) (Marra, J.); see also Taylor v. Sturgell, 553 U.S. 880, 893 (2008) (“[O]ne is not bound by a judgment

in personam in a litigation in which he is not designated as a party or to which he has not been made a

party by service of process[.]” (quoting Hansberry v. Lee, 311 U.S. 32, 40 (1940))). And the Defendants

don’t even try to establish that the Defendants are Cruz’s “privy.” See generally MTD at 22–25. They’ve

therefore forfeited any such argument. See Campbell, 26 F.4th at 873 (“[F]ailure to raise an issue in an

initial brief . . . should be treated as a forfeiture of the issue, and therefore the issue may be raised by

the court sua sponte [only] in extraordinary circumstances.”); Hamilton, 680 F.3d at 1319 (“[T]he failure

to make arguments and cite authorities in support of an issue waives it.”); In re Egidi, 571 F.3d at 1163

(“Arguments not properly presented . . . are deemed waived.”).

As to Defendant Cruz, claim preclusion (res judicata) requires a showing that both suits involve

“the same cause of action,” Baloco v. Drummond Co., 767 F.3d 1229, 1246 (11th Cir. 2014), and issue

preclusion (collateral estoppel) demands proof that “the issue at stake is identical to the one involved

in the prior proceeding,” Christo v. Padgett, 223 F. 3d 1324, 1339 (11th Cir. 2000). And the Defendants

wholly fail to explain how the Minnesota Action—which involved claims for Breach of Fiduciary Duty

(Count I), Misappropriation, Waste, and Misue of Assets (Count II), Conversion (Count III), Unjust

Enrichment (Count IV), Civil Liability for Theft under MINN. STAT. § 604.14 (Count V), Civil Liability

for Theft under MINN. STAT. § 609.53 (Count VI), Replevin (Count VII), Accounting (Count VIII),

Constructive Trust (Count IX), and Injunctive Relief (Count X)—involved the same issue or cause of

action as the Plaintiff’s tortious-interference claim does here. Their conclusory statements that “the

issue litigated in the Minnesota Action is identical to that in Count II” and that “[t]he ‘cause of action’

is likewise identical” is obviously insufficient to meet their burden here. MTD at 24; see also In re Piper

Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir. 2001) (“At all times the burden is on the party asserting

res judicata (here, Teledyne) to show that the later-filed suit is barred.”); Chavez v. Sec’y Fla. Dept. of

Corr., 647 F.3d 1057, 1061 (11th Cir. 2011) (“[J]udges are not required to ferret out delectable facts

buried in a massive record[.]”).

b. The Plaintiff Fails to State a Claim for Tortious Interference

Still, we think the Plaintiff fails to state a viable tortious-interference claim here. Under Florida

law, a claim for tortious interference with a business relationship has four elements: “(1) the existence

of a business relationship that affords the Plaintiff existing or prospective legal rights; (2) the

defendant’s knowledge of the business relationship; (3) the defendant’s intentional and unjustified

interference with the relationship; and (4) damage to the Plaintiff.” Int’l Sales & Serv., Inc. v. Austral

Insulated Prods., Inc., 262 F.3d 1152, 1154 (11th Cir. 2001). “The third element, intentional and

unjustified interference with a business relationship, requires the plaintiff to allege that the defendant

acted without justification.” Duty Free Am., Inc. v. Estee Lauder Cos., Inc., 797 F.3d 1248, 1280 (11th Cir.

2015) (quotation marks omitted). “This is a fact-intensive inquiry that requires an examination of the

defendant’s conduct, its motive, and the interests it sought to advance.” Ibid. Our Plaintiff fails this

third element.

The Plaintiff’s claim fails against Defendant Cruz because Cruz wasn’t a “stranger” to the

business relationship between Sherwin Williams and the Plaintiff. “For the interference to be

unjustified, the interfering defendant must be a third party, a stranger to the business relationship.”

Al Rushaid Petroleum Inv. Co. v. Siemens Energy Inc., 159 F.4th 887, 894 (11th Cir. 2025) (Marcus, J.). A

party isn’t a stranger if the party “has a supervisory interest in how the relationship is conducted or a

potential financial interest in how a contract is performed.” Palm Beach Cnty. Health Care Dist. v. Pro.

Med. Educ., Inc., 13 So. 3d 1090, 1094 (Fla. 4th DCA 2009). As Core’s Chief Operating Officer, see

Compl. ¶ 25, Cruz wasn’t a “stranger” to the Plaintiff’s relationship with Sherwin Williams, see Ernie

Haire Ford, Inc. v. Ford Motor Co., 260 F.3d 1285, 1294 (11th Cir. 2001) (“Under Florida law, a claim for

tortious interference with contract cannot lie where the alleged interference is directed at a business

relationship to which the defendant is a party.”).

“[A] non-stranger’s conduct still may be actionable in a tortious interference claim in two

situations: (1) if improper means are employed, or (2) if the motive for the actions is purely malicious

and not coupled with any legitimate competitive economic interest.” Al Rushaid, 159 F.4th at 895–96

(cleaned up). “Improper methods include physical violence, misrepresentations, illegal conduct, and

threats of illegal conduct.” Shenzhen Kinwong Elec. Co. v. Kukreja, 574 F. Supp. 3d 1191, 1214 (S.D. Fla.

2021) (Altman, J.) (cleaned up); see also Hurchalla v. Lake Point Phase I, LLC, 278 So. 3d 58, 66 (Fla. 4th

DCA 2019) (“[A]llegations of the use of threats, intimidation, and conspiratorial conduct were

indicative of malice” (quotation marks omitted)). And malice involves conduct “committed with ill

will, hatred, spite, or an evil intent”—i.e., “the subjective intent to do wrong.” Gay v. Jupiter Island

Compound, LLC, 358 So. 3d 780, 789–90 (Fla. 4th DCA 2023) (cleaned up); see also Hurchalla, 278 So.

3d at 66 (“[E]xpress malice is proven when the motive is characterized as out of spite, to do harm, or

for some other bad motive.” (quotation marks omitted)).

But our Complaint doesn’t allege that Cruz interfered either with “the subjective intent to do

wrong,” Gay, 358 So. 3d at 789–90, or through “physical violence, misrepresentations, illegal conduct,

and threats of illegal conduct,” Shenzhen, 574 F. Supp. 3d at 1214; see generally Compl. The Plaintiff thus

hasn’t plausibly claimed that Cruz’s interference was “intentional and unjustified.” Int’l Sales, 262 F.3d

at 1154.

As for the remaining Defendants, the Plaintiff never explains how the Defendants’

interference was unjustified. “Crucially, in assessing whether a party’s interference was unjustified,

‘Florida recognizes a privilege of interference.’” Shenzhen, 574 F. Supp. at 1213 (quoting Duty Free Ams.,

797 F.3d at 1280). “This privilege of interference embodies the fundamental principle that a

competitor can go after business for itself: ‘there can be no claim for tortious interference with a

business relationship where the action complained of is undertaken to safeguard or promote one’s

financial or economic interest.’” Ibid. (quoting Gunder’s Auto Ctr. v. State Farm Mut. Auto. Ins. Co., 422

F. App’x 819, 822 (11th Cir. 2011)). In our case, the Plaintiff bases its interference claim on the

allegation that the Defendants stole the Plaintiff’s customer (Sherwin Williams) for themselves. See,

e.g., Compl. ¶ 32 (“Austram and WTC entered into a contractual relationship with Sherwin Williams

to supply ladders that infringe Core’s patents and trademarks.”); id. ¶ 33 (“Austram and WTC were

allowed to, and did, present Core’s patented and trademarked products to Mr. Young of Sherwin

Williams at the 2021 Line Review after Core was disinvited to the same.”). On the Plaintiff’s own

allegations, then, the privilege plainly applies.

But that doesn’t end our analysis because this privilege to compete is “qualified.” Ernie, 260

F.3d at 1294 n.9. In particular, the privilege can be overcome in two circumstances. “First, a party can

overcome the competition privilege by proving that ‘the defendant’s motive was purely malicious.’”

Shenzhen, 574 F. Supp. 3d at 1213 (quoting KMS Rest. Corp. v. Wendy’s Int’l, Inc., 361 F.3d 1321, 1327

(11th Cir. 2004)). “Second, a tortious-interference claim can survive the privilege ‘if improper methods

were used.’” Ibid. (quoting KMS, 361 F.3d at 1327); see also Duty Free Ams., 797 F.3d at 1280 (noting

that interference is privileged “unless the [claimant] alleges a purely malicious motive divorced from

any legitimate competitive economic interest” or “adequately alleges improper methods” (cleaned

up)). “The idea (of course) is that, while companies may freely compete for business, that competition

becomes tortious when it’s grounded in an improper purpose or method.” Shenzhen, 574 F. Supp. 3d

at 1213.

Our Plaintiff alleges that the “Defendants intentionally and unjustifiably interfered with Core’s

advantageous business relationship with Sherwin Williams by contacting Mr. Young, preventing Core

from attending 2021 Line Review, taking Core’s place at the 2021 Line Review and presenting Core’s

patented products, and replacing Core as a vendor for the same products.” Compl. ¶ 60. Two

problems with this.

First, by its own allegations, the Plaintiff’s business relationship with Sherwin Williams ended

“[o]n or about March 16, 2021, [when] Sherwin Williams cancelled the remaining purchase orders.”

Id. ¶ 21. So, by the time the Defendants took “Core’s place at the 2021 Line Review[,] [ ] present[ed]

Core’s patented products, and replac[ed] Core as a vendor for the same products,” the business

relationship had already ended. And the Defendants cannot “tortiously interfere” with a business

relationship that no longer exists. See Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So. 2d 812, 815

(Fla. 1994) (holding that a party could not “recover for the loss of its goodwill with past customers

under a tortious interference with a business relationship theory”); see also ibid. ([I]t is equally clear that

[the Plaintiff’s] relationship with its past customers was not one upon which a claim for tortious

interference with a business relationship could be based. [The Plaintiff] had no identifiable agreement

with its past customers that they would return to [the Plaintiff] to purchase furniture in the future.

The mere hope that some of its past customers may choose to buy again cannot be the basis for a

tortious interference claim.”).

Second, this leaves only the Plaintiff’s allegations that the Defendants interfered by “contacting

Mr. Young [and] preventing Core from attending 2021 Line Review[.]” Compl. ¶ 60. But it pleads no

facts showing that these actions were “purely malicious” or that they occurred because of “improper

methods.” Shenzhen, 574 F. Supp. 3d at 1213. The Plaintiff thus hasn’t shown that either exception to

the competition privilege applies here.7 We therefore GRANT the Motion to Dismiss Count II,

though we’ll give the Plaintiff leave to file an amended complaint that beefs up the allegations in this

count.

V. Count III: Patent Infringement

a. The Plaintiff Fails to Comply with the Pre-Suit Marking Notice

The Defendants next argue that the patent marking statute, 35 U.S.C. § 287(a),8 “bars patentees

from recovering damages if they did not mark their patented items or otherwise notify infringers of

the alleged infringement,” Shenzhen Hengzechen Tech. Co. v. Individuals, P’ships, & Uninc. Ass’ns identified

7 The Plaintiff also doesn’t tell us how the Defendants interfered with the relationship. We

don’t, for instance, know how “contacting Mr. Young” interfered with the Plaintiff’s business

relationship, how the Defendants (or even which Defendants) “prevent[ed] Core from attending [the]

2021 Line Review,” or what actions the Defendants took to “intentionally and unjustifiably interfere”

with that relationship.

8 Section 287(a) provides, in pertinent part, as follows:

Patentees, and persons making, offering for sale, or selling within the

United States any patented article for or under them, or importing any

patented article into the United States, may give notice to the public

that the same is patented, either by fixing thereon the word “patent”

or the abbreviation “pat.”, together with the number of the patent . . .

In the event of failure so to mark, no damages shall be recovered by

the patentee in any action for infringement, except on proof that the

infringer was notified of the infringement and continued to infringe

thereafter, in which event damages may be recovered only for

infringement occurring after such notice.

on Schedule “A”, 2024 WL 475269, at *2 (S.D. Fla. Feb. 7, 2024) (Scola, J.). In this section of their brief,

the Defendants contend that the Plaintiff both “neglects to plead compliance with the marking statute”

and “fail[s] to adequately allege[ ] that it provided notice to [the] Defendants because it does not allege

when each Defendant became aware of the ’912 Patent with specificity.” MTD at 17. The Plaintiff

counters with two arguments. First, it says that “whether a party has complied with the marking statute

is a question of fact and is not suitable for a motion to dismiss.” Resp. at 11. Second, it insists that it

“has plead [sic] both in the Complaint.” Ibid.

“Pursuant to 35 U.S.C. § 287(a), a patentee who makes or sells a patented article must mark

his articles or notify infringers of his patent in order to recover damages.” Arctic Cat Inc. v. Bombardier

Recreational Prods. Inc., 876 F.3d 1350, 1365 (Fed. Cir. 2017) (citing Dunlap v. Schofield, 152 U.S. 244, 248

(1894)). “[T]he duty of alleging and the burden of proving either [actual or constructive notice] is upon

the [patentee].” Dunlap, 152 U.S. at 248. The Federal Circuit has been clear that “an infringer’s

knowledge alone is insufficient; the statute requires the patentee to affirmatively mark the patent or

provide notice to the infringer.” Artic Cat, 950 F.3d at 866–67. “If a patentee who makes, sells, offers

for sale, or imports his patented articles has not ‘given notice of his right’ by marking his articles

pursuant to the marking statute, he is not entitled to damages before the date of actual notice.” Id. at

866 (quoting Dunlap, 152 U.S. at 248). In other words, a patentee “is entitled to damages from the

time when it either began marking its products in compliance with section 287(a) or when it actually

notified [the infringer] of its infringement, whichever was earlier.” Am. Med. Sys., Inc. v. Med. Eng’g

Corp., 6 F.3d 1523, 1537 (Fed. Cir. 1993). “Section 287 is thus a limitation on damages, and not an

affirmative defense.” Ibid.

As an initial matter, we reject the Plaintiff’s first argument that “whether a party has complied

with the marking statute is a question of fact and is not suitable for a motion to dismiss.” Resp. at 11.

“Even though a Plaintiff ‘need not prove its case at the pleading stage,’ Plaintiffs do have the

affirmative obligation to plead compliance with the notice requirements of the marking statute.”

Shenzhen, 2024 WL 475269, at *2 (quoting Bot M8 LLC v. Sony Corp. of Am., 4 F.4th 1342, 1346 (Fed.

Cir. 2021); see also Artic Cat, 876 F.3d at 1366 (“The patentee bears the burden of pleading and proving

he complied with § 287(a)’s marking requirement.”). “The duty falls on Plaintiffs because whether

patented items have been marked is ‘a matter peculiarly within the patentee’s own knowledge.” Artic

Cat, 876 F.3d at 1366 (quoting Dunlap, 152 U.S. at 248). Our question at this stage, then, is whether

the Plaintiff has pled “compliance with the notice requirements of the marking statute.” Shenzhen, WL

475269, at *2. It has not.

Indeed, the Complaint says nothing about whether the Plaintiff’s products included the

required patent markings. In its Response, the Plaintiff says that its “patented products contain the

required patent markings for the [’]912 Patent and [claims that it] alleges as such in its Complaint.”

Resp. at 11 (citing Compl. ¶¶ 31, 34, 35). Two problems with this. First, the paragraphs the Plaintiff

cites say nothing about the marking statute. What they do say is that the Defendants sold ladders

“covered by Core’s [’]912 Patent,” Compl. ¶ 31; that the Defendants’ infringing products “had their

trademarked labels affixed,” id. ¶ 34; and that “no effort was made in designing the [infringing

products] to avoid infringing on the [’]912 patent,” id. ¶ 35. None of these allegations show compliance

with the marking statute. For one thing, whether the products contained a trademark label is beside the

point. Section 287(a) requires products to display a “mark,” which the statute defines as including “the

word ‘patent’ or the abbreviation ‘pat.’, together with the number of the patent, or . . . with an address

of a posting on the Internet, accessible to the public without charge for accessing the address, that

associates the patented article with the number of the patent[.]” § 287(a). And the Plaintiff doesn’t tell

us whether its trademark labels included all of these requirements. For another, “[i]n determining

whether the patentee marked its products sufficiently to comply with the constructive notice

requirement, the focus is not on what the infringer actually knew, but on whether the patentee’s

actions were sufficient, in the circumstances, to provide notice in rem.” Nike, Inc. v. Wal-Mart Stores,

Inc., 138 F.3d 1437, 1446 (Fed. Cir. 1998). The Defendants’ subjective knowledge that the alleged

product was “covered by Core’s [’]912 Patent” and their concomitant failure to “avoid infringing on

the ‘912 patent” are thus irrelevant to our core inquiry—which is whether the Plaintiff complied with

the patent marking statute.

Second, “a plaintiff cannot amend her faulty complaint through her response to a motion to

dismiss.” Amaya v. Vilsack, 2024 WL 1285162, at *4 (S.D. Fla. Mar. 26, 2024) (Altman, J.); see also

Wilchombe., 555 F.3d at 959 (“A court’s review on a motion to dismiss is limited to the four corners of

the complaint.”). So, the Plaintiff’s post hoc argument that its “patented products contain the required

patent markings for the [’]912 Patent and [its claim that it] alleges as such in its Complaint,” Resp. at

11, doesn’t cure the Complaint’s deficiency on this vital point.

We therefore find that the Plaintiff hasn’t shown that it complied with the patent marking

statute—though we’ll grant the Plaintiff leave to fix this defect.

b. The Plaintiff May Only Recover Damages After Actual Notice

Because the Complaint is “silent as to the Plaintiff’s marking of the patent, [ ] the Court turns

to whether the Plaintiff alleged that it provided notice to the Defendants.” Shenzhen, 2024 WL 475269,

at *2. And the Plaintiff does allege that, through the Infringement Letter, it gave Defendants WTC,

Alexander Joch, and Fred Joch (the recipients of that letter) actual notice of their infringement on

April 8, 2024.9 See Infringement Letter; see also Compl. ¶ 45 (“Core’s counsel sent correspondence to

the Defendants notifying them that their Austram ladder infringes Core’s ‘912 Patent.”).

9 We may consider the Infringement Letter in adjudicating the Motion to Dismiss because the

Plaintiff attached it to the Complaint. See Hoefling v. City of Miami, 811 F.3d 1271, 1277 (11th Cir. 2016)

(“A district court can generally consider exhibits attached to a complaint in ruling on a motion to

dismiss[.]”).

The Federal Circuit has “explained that as long as the communication from the patentee

provides sufficient specificity regarding its belief that the recipient may be an infringer, the statutory

requirement of actual notice is met.” Gart v. Logitech, Inc., 254 F.3d 1334, 1345–46 (Fed. Cir. 2001).

“[L]etters that specifically identify a product and offer a license for that product do constitute actual

notice.” Minks v. Polaris Indus., Inc., 546 F.3d 1364, 1376 (Fed. Cir. 2008). And the Infringement Letter

does just that. See Infringement Letter at 2 (identifying “United States Patent, no. US 10,053,912 B2”

and stating that WTC “is selling a ladder, the Austram Telescoping Ladder, that infringes Core

Distribution’s [’]912 Patent”). The Plaintiff has therefore adequately pled that it gave Defendants

World Trade, Alexander Joch, and Fred Joch actual notice of their infringement on April 8, 2024.

But the Plaintiff never alleges that it gave actual notice to Defendants Christopher Joch or

Austram. As for Defendant Cruz, the Plaintiff argues that it didn’t need to plead actual notice because

“Defendant Cruz [ ] had direct knowledge of the patent due to his previous employment with Core.”

Resp. at 11. “Such a fact,” the Plaintiff insists, “serves to show pre-suit knowledge of the patent to

support the claim of willfulness.” Ibid. Again, though, as we’ve explained, “[i]t is irrelevant under § 287

whether the defendant knew of the patent or knew of his own infringement. The correct approach to

determining notice under § 287 must focus on the action of the patentee, not the knowledge or

understanding of the infringer.” Lubby Holdings LLC v. Chung, 11 F.4th 1355, 1360 (Fed. Cir. 2021); see

also Am. Med. Sys., 6 F.3d at 1537 (“Absent notice, the [infringer’s] ‘knowledge of the patents’ is

irrelevant.”); Devices for Med. Inc. v. Boehl, 822 F.2d 1062, 1066 n.18 (Fed. Cir. 1987) (“The notice of

infringement must therefore come from the patentee, not the infringer.”).

Defendants Christopher Joch, Cruz, and Austram thus never received pre-suit notice of their

infringing activities. “In the event of a lack of pre-suit notice, a Plaintiff can only recover damages for

infringement that occurs following the filing of the lawsuit.” Shenzhen, 2024 WL 475269, at *3 (citing

Arctic Cat, 950 F.3d at 866-67); see also Lubby, 11 F.4th at 1361 (“Damages thus can only be awarded

for infringing units sold after the filing of the lawsuit.”); § 287(a) (“Filing of an action for infringement

shall constitute [actual] notice.”).

* * *

We therefore DISMISS the Plaintiff’s claim for damages as to Defendants WTC, Alexander

Joch, and Frederick Joch before April 8, 2024, the date of the Infringement Letter, and as to Defendant

Christopher Joch, Cruz, and Austram before October 23, 2024, when this lawsuit was filed. Of course,

if the Plaintiff manages to properly allege compliance with the marking statute in its amended

complaint, then it will have satisfied its burden of advancing a claim for constructive notice. (at least

for now)

c. Count III Fails to State a Claim Against the Individual Defendants

We turn, then, to the merits of Count III. The Complaint alleges that the “Defendants have

infringed and continue to infringe the [’]912 Patent by making, using, selling, and/or offering for sale

in the U.S., and/or importing into the U.S., the Austram ladder.” Compl. ¶ 65. The Defendants argue

that the Plaintiff “does not plead that any Individual Defendant committed acts of patent infringement

independent from the Corporate Defendants’ sales of ladders, so Count III should be dismissed as to

the Individual Defendants under Rule 12(b)(6)[.]” MTD at 10. The Plaintiff’s disagree, responding

that “[t]he Complaint alleges the wrongful acts committed by Defendants individually and through

the corporate entities in which they are affiliated.” Resp. at 12. And, they say, “the individual

defendants may still be found liable for wrongful conduct even though they are agents or employed

by a corporation when they are acting for their own personal motivations.” Ibid. We agree with the

Defendants and DISMISS Count III as to the Individual Defendants.

In adjudicating a motion to dismiss a patent claim under Rule 12(b)(6), we apply the law of

the Federal Circuit. See AlexSam, Inc. v. Aetna, Inc., 119 F.4th 27, 35 (Fed. Cir. 2024) (“We apply our

own law to the specific question of whether a complaint states a claim of patent infringement on

which relief may be granted.”). “A plaintiff is not required to plead infringement on an element-by-

element basis.” Bot, 4 F.4th at 1352. “Instead, it is enough that a complaint places the alleged infringer

on notice of what activity is being accused of infringement.” Adnexus Inc. v. Meta Platforms, Inc., 160

F.4th 1216, 1221 (Fed. Cir. 2025). “Still, ‘there must be some factual allegations that, when taken as

true, articulate why it is plausible that the accused product infringes the patent claim.” Ibid. (quoting

Bot, 4 F.4th at 1353).

i. The Complaint doesn’t sufficiently allege that the Individual Defendants

infringed the Plaintiff’s patent.

We agree with the Defendants that the Plaintiff “does not plead that any Individual Defendant

committed acts of patent infringement independent from the Corporate Defendants’ sales of

ladders[.]” MTD at 10. “‘Patent infringement is a tort,’ and ‘in general, a corporate officer is personally

liable for his tortious acts, just as any individual may be liable for a civil wrong.’” Wordtech Sys., Inc v.

Integrated Networks Sols., Inc., 609 F.3d 1308, 1313 (Fed. Cir. 2010) (first quoting Mars, Inc. v. Coin

Acceptors, Inc., 527 F.3d 1359, 1365 (Fed. Cir. 2008); and then quoting Hoover Grp., Inc. v. Custom

Metalcraft, Inc., 84 F.3d 1408, 1411 (Fed. Cir. 1996)). In our case, the Complaint alleges only that WTC

and Austram (our Corporate Defendants) offered to sell, and then sold, the Plaintiff’s patented

products in violation of § 271(a). See Compl. ¶ 33 (“Austram and WTC were allowed to, and did,

present Core’s patented and trademarked products to [ ] Sherwin Williams at the 2021 Line

Review[.]”); id. ¶ 39 “[Sherwin Williams] entered into a vendor agreement with WTC and Austram for

significant orders of products which infringe Core’s intellectual property.”); see also 35 U.S. § 271(a)

(“[W]however without authority . . . offers to sell, or sells any patented invention, within the United

States . . . infringes the patent.”). But the Complaint never says that any of the Individual Defendants

“makes, uses, offers to sell, or sells any patented invention, within the United States[.]” Ibid. The

Plaintiff has therefore failed to plausibly allege that any Individual Defendant violated § 271(a) such

that he may be held “personally liable for his tortious acts[.]” Wordtech, 609 F.3d at 1313.

ii. The Plaintiff hasn’t alleged sufficient facts to allow us to pierce the corporate

veil.

The Complaint alleges that “unity of interest and ownership existed between WTC, Austram,

A. Joch, F. Joch, C. Joch, and Cruz such that any individuality and separateness between them ceased,

and they each individually operated as the alter egos of one another.” Compl. ¶ 41. Although the

Complaint never proceeds to ask us to pierce the corporate veil in any of its counts, the Defendants

covered all their bases by arguing that the Plaintiff “has not alleged facts requisite for [a veil-piercing]

determination.” MTD at 27. And the Plaintiff made everyone’s life easier by not addressing this

argument at all in their response. The closest it gets is its suggestion that “[t]he Complaint alleges the

wrongful acts committed by Defendants individually and through the corporate entities in which they

are affiliated.” Resp. at 12. We can hardly read this conclusory and generic sentence as meeting the

Plaintiff’s burden of pleading alter-ego liability. After all, the Plaintiff tells us nothing about the

corporate structure of either WTC or Austram, it never alleges that the Individual Defendants

disregarded the corporate form, it never says what the Individual Defendants’ roles at either company

were, and it never details how or why the Defendants (in its view) “operated as the alter egos of one

another.” Compl. ¶ 41. That’s plainly insufficient.10 See Elof Hansson Paper & Bd., Inc. v. Caldera, 2011

WL 13115561, at *4 (S.D. Fla. Sept. 6, 2011) (Ungaro, J.) (“Conclusory allegations will not suffice to

state a claim based upon an alter-ego theory of liability. Rather, the plaintiff must set forth facts

demonstrating that the corporate form should be ignored.”); SD3, LLC v. Black & Decker (U.S.) Inc.,

10 “It is black letter law in Florida that to disregard this corporate fiction and hold the

corporation’s owners liable—to ‘pierce the corporate veil’—the plaintiff must prove that: (1) the

shareholder dominated and controlled the corporation to such an extent that the corporation’s

independent existence, was in fact non-existent and the shareholders were in fact alter egos of the

corporation; (2) the corporate form must have been used fraudulently or for an improper purpose;

and (3) the fraudulent or improper use of the corporate form caused injury to the claimant.” Molinos

Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1349 (11th Cir. 2011). Our Plaintiff’s Complaint

alleges none of these things.

801 F.3d 412, 423 (4th Cir. 2015), as amended on reh’g in part (Oct. 29, 2015) (“SawStop nakedly alleges

only that all of the corporate subsidiaries are ‘dominated by, and are alter egos of,’ these corporate

parents. That allegation offers only a legal conclusion, and SawStop has alleged no facts suggesting the

kind of unity of interests that we usually require a party to plead before permitting them to advance

an alter ego theory.” (cleaned up)).

We therefore DISMISS Count III as to the Individual Defendants.11

VI. Count I Fails to State a Plausible Claim for Civil Conspiracy

Finally, we turn to Count I, which alleges that the “Defendants are parties to a civil conspiracy”

and “conspired to do an unlawful act or to do a lawful act by unlawful means.” Compl. ¶¶ 51, 52. In

this count, the Plaintiff claims that the “Defendants conspired to usurp Core’s corporate opportunity

and infringe upon the [’]912 Patent, thereby doing economic harm to Core.” Id. ¶ 53. And it says that

the “Defendants committed an overt act in furtherance of their conspiracy, including attending the

2021 Line Review in place of Core and presenting Core’s own patent protected products to Sherwin

Williams with Core’s trademarks affixed.” Id. ¶ 55. The Defendants urge us to dismiss Count I because

the Plaintiff “fails to allege any agreement among the Defendants—let alone all of them—to take an

unlawful action.” MTD at 17. For two reasons, we agree.

First, the Plaintiff fails to identify an underlying tort. “Florida does not recognize an

independent cause of action for civil conspiracy.” Siegmund v. Xuelian Bian, 2018 WL 1611197, at *14

(S.D. Fla. Apr. 2, 2018) (Moreno, J.). “Rather, civil conspiracy is a derivative action that arises out of

11 One last thing: Section 271 provides “three forms of liability”: “improper inducement[,] . . .

direct infringement[,] and contributory inducement.” Commil USA, LLC v. Cisco Sys., Inc., 575 U.S.

632, 638 (2015). “Subsection (a) governs direct infringement[.]” Ibid. “Subsection (b) governs induced

infringement[.]” Id. at 639. “Subsection (c) deals with contributory infringement[.]” Ibid. If the Plaintiff

repleads its patent-infringement claim against the Individual Defendants, it must specify which

subsection its claims arise under as to each Defendant and then separate its claims under each

subsection into separate counts.

an independent actionable claim.” Ibid.; see also Rushing v. Bosse, 652 So. 2d 869, 875 (Fla. 4th DCA

1995) (“In order to plead a cause of action for civil conspiracy there must be an underlying

independent wrong or tort.”). And our Plaintiff hasn’t pled an underlying tort for two reasons. For

one thing, “conspiracy to infringe a patent [is] a theory which has no basis in law.” Int’l Rectifier Corp.

v. Samsung Elecs. Co., 361 F.3d 1355, 1361 (Fed. Cir. 2004). For another, we’ve already dismissed the

Plaintiff’s tortious-interference claim. See supra IV. So, the Plaintiff is left with no “underlying

independent wrong or tort” and thus cannot assert its civil-conspiracy claim. Rushing, 652 So. 2d at

875.

Second, even if the Plaintiff had successfully pled a tortious-interference claim in Count III, the

Complaint doesn’t sufficiently allege an illegal agreement among the Defendants. “[U]nder Florida

law, pleading a civil conspiracy requires alleging ‘(a) an agreement between two or more parties, (b) to

do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt act in pursuance

of the conspiracy, and (d) damage to plaintiff as a result of the acts done under the conspiracy.’” Karnas

v. Cuban, 2025 WL 3759241, at *12 (S.D. Fla. Dec. 30, 2025) (Altman, J.) (quoting Raimi v. Furlong, 702

So. 2d 1273, 1284 (Fla. 3d DCA 1997)). Our Plaintiff falters at the first step.

As we’ve highlighted, the Plaintiff alleges in only the most conclusory way that the Defendants

interfered with its business relationship with Sherwin Williams. See, e.g., Compl. ¶ 36 (“Mr. Young and

other former employees of Core (who all now work for WTC and/or Austram in some capacity) have

conspired to destroy Core’s longstanding advantageous business relationship with Sherwin Williams

and effectively replace Core with Austram and WTC.”); id. ¶ 37 (“[The] Defendants (acting with the

assistance of Mr. Young) have actively interfered with and caused the wrongful termination of

purchase orders to Core placed by Sherwin Williams.”). “[T]hese bare-bones descriptions lump all the

parties into a single entity without establishing any coordinated action.” Karnas, 2025 WL 3759241, at

*13 (cleaned up); see also Parisi v. Kingston, 314 So. 3d 656, 662 (Fla. 3d DCA 2021) (finding allegations

“not sufficiently clear and specific as to the existence of a civil conspiracy” because “[t]he pleading

vaguely ties the events together by alleging, in conclusory fashion, that the circumstances unfolded

pursuant to an agreement”). “To allege a conspiracy, a plaintiff must make particularized allegations

that are more than vague or conclusory.” Albra v. City of Ft. Lauderdale, 232 F. App’x 885, 891 (11th

Cir. 2007) (cleaned up). Our Plaintiff hasn’t done that here. We therefore GRANT the Motion to

Dismiss Count I.

CONCLUSION

The Plaintiff must do better in its amended complaint. “Experience teaches that, unless cases

are pled clearly and precisely, issues are not joined, discovery is not controlled, the trial court’s docket

becomes unmanageable, the litigants suffer, and society loses confidence in the court’s ability to

administer justice.” Anderson v. Dist. Bd. of Tr. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366–67 (11th Cir.

1996). To avoid these problems, we’ll give the Plaintiff one more chance to replead its claims—this

time with facts and not just legal conclusions. But the Plaintiff will be given no more chances. If we

dismiss its amended complaint, we will dismiss it with prejudice.

***

After careful review, therefore, we ORDER and ADJUDGE as follows:

1. The Defendant’s Motion to Dismiss [ECF No. 27] is GRANTED.

2. Counts I & III of the Complaint [ECF No. 1] are DISMISSED without prejudice. Count

III is DISMISSED without prejudice as to Defendants Christopher Joch, Alexander Joch,

Frederick Joch, and Francisco Cruz.

3. If the Plaintiff wants to file an amended complaint, it must do so by June 4, 2026.

DONE AND ORDERED in the Southern District of Florida on May 7, 2026.

ROY K. ALTMAN

UNITED STATES DISTRICT JUDGE

CC: counsel of record

27