United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE UNITED STATES DISTRICT JUDGE.
THE COURT are Defendant David Duvernay's Rule
12(b)(6) Motion to Dismiss (Dkt. 6) and Plaintiffs response
in opposition (Dkt. 18). Upon consideration, Duvernay's
motion is DENIED.
brings causes of action against Defendants for violation of
the Federal Defend Trade Secrets Act (Count I), violation of
the Florida Uniform Trade Secrets Act (Count II), tortious
interference with business relationships (Count III), and
business slander (Count IV). (Complaint, Dkt. 1). Duvernay
moves for dismissal of Counts I, II, and IV. (Dkt. 6).
8(a)(2) of the Federal Rules of Civil Procedure requires a
plaintiff to provide a short and plain statement of his claim
sufficient to demonstrate entitlement to relief and to give
fair notice of the grounds on which the claim rests.
Fed.R.Civ.P. 8(a)(2); Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). A plaintiff is not required to set
out in detail the facts on which the claim is based. Bell
All Corp., 550 U.S. at 555 & n.3. However, a
plaintiff must allege "more than labels and conclusions,
and a formulaic recitation of the elements of a cause of
action will not do." Id. at 555. All of the
factual allegations in a complaint must be accepted as true
for the purposes of a motion to dismiss, but this tenet is
"inapplicable to legal conclusions." Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). All reasonable
inferences must be drawn in the plaintiffs favor. St.
George v. Pinellas Cnty., 285 F.3d 1334, 1337 (11th Cir.
2002). A court's review on a motion to dismiss is limited
to the four corners of the complaint. Id.
DTSA creates a private cause of action for an owner of a
trade secret that has been misappropriated, so long as the
trade secret relates to a product or service used in
interstate commerce. See 18 U.S.C. §
1836(b)(1). Both the DTSA and UTSA generally define a trade
secret as information that derives economic value from not
being generally known to or readily ascertainable through
proper means by another person, and that is subject to
reasonable efforts to maintain its secrecy. See Id.
at § 1839(3); Fla. Stat. § 688.002(4). "In a
trade secret action, the plaintiff bears the burden of
demonstrating both that the specific information it seeks to
protect is secret and that it has taken reasonable steps to
protect this secrecy." American Red Cross v. Palm
Beach Blood Bank Inc., 143 F.3d 1407, 1410 (11th Cir.
1998) (applying the UTSA).
law applies to Plaintiffs slander claim. Anheuser Bitsch,
Inc. v. Philpot, 317 F.3d 1264, 1266 & n.2 (11th
Cir. 2003). Proof of actual damage is an essential element of
a defamation claim. Id. at 1266 (citing Miami
Herald Publ 'g Co. v. Ane, 423 So.2d 376, 388 (Fla.
Dist. Ct. App. 1982)). But slanderous statements that impute
to another characteristics incompatible with the proper
exercise of business or trade, or that charge another with
the commission of a crime, are actionable per se. See
Spears v. Albertson's Inc., 848 So.2d 1176, 1178-79
(Fla. Dist. Ct. App. 2003).
asserts that he created the information that Plaintiff is now
claiming as its trade secrets, and describes his career
history to support that assertion. (Motion to Dismiss, Dkt. 6
at p. 1).Those facts cannot be considered because they are
outside of the four corners of the Complaint. St.
George, 285 F.3d at 1337. He otherwise argues that
Plaintiffs trade secrets claims are based on bare legal
conclusions because it failed "to specify with any
exactitude what pieces of information actually constitute
trade secrets" and failed "to plead any facts that
'Beach 2 Bay' attempts to maintain the secrecy or
confidentiality of the information it lists as its trade
secrets." (Motion to Dismiss, Dkt. 6 at pp. 4-5). He
further argues that Plaintiffs defamation claim is legally
insufficient because it fails to allege any lost customers or
damaged business arrangements that support its assertion of
actual damages. (Id. at p. 5).
identifies its trade secret information and the reasonable
steps it took to protect that information with sufficient
particularity. For example, Plaintiff identified client
records, pricing information records, accounts receivable
documents, and business plans. (Complaint, Dkt. 18
¶¶ 23 -25). The allegations that Defendants have
used Plaintiff s client information and business records to
undercut its prices and poach its clients show, with all
reasonable inferences drawn in Plaintiffs favor, that the
identified information derives economic value from not being
generally known. See Kavanaugh v. Stump, 592 So.2d
1231, 1232 (Fla. Dist. Ct. App. 1992). It further alleges
that it protected its trade secrets with confidentiality
provisions in its Operating Agreement and by advising
Duvernay not to use or disclose the confidential information.
(Complaint, Dkt. 1 at ¶¶ 32, 44). Plaintiffs
allegations, therefore, are sufficient to plausibly show a
trade secret was involved and to give Defendants notice of
the material it claims constitutes trade secrets. See
DynCorp Int'l v. AAR Airlift Grp., Inc.,
664 Fed.Appx. 844, 848 (11th Cir. 2016) (per curiam).
also alleges sufficient facts to support its slander claim.
It plausibly asserts that Duvernay's statements that it
stole his boat, made in the context of attempting to lure
away its clients, constitute slander per se. See
(Complaint, Dkt. 1 at ¶ 60); Spears, 848 So.2d
at 1178 ("A determination of whether these words
constitute slander must be made by considering the context in
which the words were spoken."). With all reasonable
inferences drawn in Plaintiffs favor, those statements impute
to it characteristics incompatible with the proper exercise
of trade and charge it with the commission of a crime, and
are therefore actionable per se. See Id. at 1179.
Plaintiff has alleged sufficient facts to support its cause
of action for misappropriation of trade secrets under the
DTSA and the UTSA, and to support its cause of action for
slander. Duvernay's Motion to Dismiss (Dkt. 6) is
Duvernay was proceeding pro se
when he filed the motion to dismiss, which he purported to
file on behalf of himself and Defendant Florida Beach
Advertising, LLC (Dkt. 6). Florida Beach is an artificial
entity and can only appear in this action through counsel.
See Palazzo v. Gulf Oil Corp.,764 F.2d 1381, 1385
(11th Cir. 1985); see also M.D. Fla. Local Rule
2.03(e). Accordingly, it is necessary to address the motion
to dismiss with respect only to Plaintiffs claims ...