final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Lisa S. Small, Judge; L.T. Case No.
Elizabeth O. Hueber and Scott A. Mager of Mager Paruas, LLC,
Hollywood, for appellant Cloud Computing Concepts, LLC.
Ricardo A. Reyes, Matthew D. Cohen, and Alfonso M. Icochea of
Tobin & Reyes, P.A., Boca Raton, for appellee for Jeffrey
case, we consider the parameters of the "intra-corporate
conspiracy doctrine" and how it specifically relates to
an allegation of civil conspiracy and whether the trial court
correctly dismissed the count of conspiracy to commit breach
of contract. We find that the trial court correctly applied
the doctrine of intra-corporate conspiracy by dismissing the
conspiracy count. We do find, however, that the trial court,
after dismissing the count, should have given the party the
opportunity to amend its complaint. Thus, we reverse and
remand for the trial court to give appellant an opportunity
to re-plead the complaint, and if appellant is unable to
plead a sufficient claim, consistent with this opinion, then
the complaint can be dismissed with prejudice.
LLC d/b/a Host.net ("Host") sued Cloud Computing
Concepts, LLC ("C3") as well as C3's CEO for
several breach of contract and tort claims. C3 counterclaimed
against Host; Jeffrey Davis, Host's CEO; and David Tobin,
Host's outside counsel. The sole claim against Davis
alleged he conspired with Host and Tobin to commit breach of
contract. As this case follows from the trial court's
dismissal of C3's sole claim against Davis, we take the
factual allegations within C3's complaint as true.
cloud computing company, had entered into a contract with
Host, a provider of power, cooling, network connectivity
services, and other infrastructure services. Subsequently,
Davis, along with Host and Tobin, allegedly attempted to
destroy C3 and acquire C3's clients. Davis allegedly
caused Host to fail to send an invoice to C3, making C3
delinquent in its payments. Davis then contacted C3's
clients, telling them Host planned to disconnect C3.
Eventually C3 learned of its missed payment and offered to
pay the amount due, but Davis informed C3 that Host would be
accelerating the agreement and demanded $50, 722.70, the
accelerated amount. Davis's purported aim was to extort
C3 into paying the accelerated sum, destroy C3 and its data
entirely, or force C3 to enter into a new, disadvantageous
alleged Davis "engaged in a maniacally despicable course
of conduct designed to harm C3 and its clients - and to get
more money for himself and Host.net." Davis also
"secured more compensation" from Host through his
moved to dismiss C3's civil conspiracy claim, arguing
that the "intra-corporate conspiracy doctrine"
prohibits, as a general proposition, a corporation from
conspiring with its own officers and agents. The trial court
dismissed the claim against Davis with prejudice. C3 now
review motions to dismiss de novo. See Habitat II Condo.,
Inc. v. Kerr, 948 So.2d 809, 811 (Fla. 4th DCA 2007).
begin our discussion with an explanation of the
intra-corporate conspiracy doctrine. This doctrine,
originally a product of antitrust law, provides that
"neither an agent nor an employee can conspire with his
or her corporate principal or employer." Richard
Bertram, Inc. v. Sterling Bank & Trust, 820 So.2d
963, 966 (Fla. 4th DCA 2002) (quoting Lipsig v.
Ramlawi, 760 So.2d 170, 180 (Fla. 3d DCA 2000));
McAndrew v. Lockheed Martin Corp., 206 F.3d 1031,
1036 (11th Cir. 2000) (en banc). "This doctrine stems
from basic agency principles that 'attribute the acts of
agents of a corporation to the corporation, so that all of
their acts are considered to be those of a single legal
actor.'" Dickerson v. Alachua Cty.
Comm'n, 200 F.3d 761, 767 (11th Cir. 2000) (quoting
Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 603
(5th Cir. 1981)). Because a civil conspiracy requires
"an agreement between two or more parties, "
Lipsig, 760 So.2d at 180, "it is not possible
for a single legal entity consisting of the corporation and
its agents to conspire with itself, "
Dickerson, 200 F.3d at 767. See also Cedar Hills
Props. Corp. v. E. Fed. Corp., 575 So.2d 673, 676 (Fla.
1st DCA 1991) ("Since a corporation is a legal entity
which can only act through its agents, officers and
employees, a corporation cannot conspire with its own agents
unless the agent has a personal stake in the activities that
are separate and distinct from the corporation's
interest."). Thus, the intra-corporate conspiracy
doctrine, as a general proposition, precludes the claim of
conspiracy against individuals and their corporation for
wholly internal agreements to commit wrongful or actionable
courts recognize the "personal stake" exception to
the intra-corporate conspiracy doctrine. Richard
Bertram, 820 So.2d at 966. Under this exception, where
an agent has a "personal stake in the activities
separate from the principal's interest, " the agent
can be liable for civil conspiracy. Id. To prove
such a personal stake, an agent must have "a personal
stake in the activities that are separate and distinct from
the corporation's interest." Lipsig, 760
So.2d at 181 (citation omitted). In other words, the agent
must have "acted 'in their personal interests,
wholly and separately from the corporation.'"
Microsoft Corp. v. Big Boy Distr. LLC, 589 F.Supp.2d
1308, 1323 (S.D. Fla. 2008) (quoting Bhatia v. Yale
Univ., No. 3:06cv1769, 2007 WL 2904205 (D. Conn. Sept.
30, 2007)). Thus, a "personal stake" must be more
than just personal animosity on the part of the agent.
See On-Site Dev. Corp. v. Riley, 564 So.2d 201, 204
(Fla. 5th DCA 1990). Moreover, the benefit to the agent must
be more than "incidental" to the benefit to the
principal. See HRCC, Ltd. v. Hard Rock Café
Int'l (USA), Inc., No. 6:14-cv-2004-Orl-40KRS, 2016
WL 6603792, at *5 (M.D. Fla. Sept. 13, 2016).
present case, because C3 has alleged Davis
"conspired" with Tobin, an agent of Host, and Host
itself, we find the intra-corporate conspiracy doctrine
applies. We further conclude that the allegations in C3's
complaint do not show that Davis had a "personal
stake" in the conspiracy different from that of the
corporation. C3 alleged Davis's aim in participating in
the conspiracy was to harm C3. However, Davis acted in his
capacity as Host's CEO and sought to benefit Host through
his allegedly tortious acts. Any benefits Davis received as a
result of his allegedly tortious actions, including ...