United States District Court, M.D. Florida, Orlando Division
NEPHRON PHARMACEUTICALS CORPORATION, NEPHRON S.C., INC. and NEPHRON STERILE COMPOUNDING CENTER LLC, Plaintiffs,
JENNIFER SHELLY HULSEY, U.S. COMPOUNDING INC. and ADAMIS PHARMACEUTICALS CORPORATION, Defendants.
GREGORY A. PRESNELL, UNITED STATES DISTRICT JUDGE
Matter comes before the Court on the Defendants' Motions
to Dismiss (Docs. 62 and 65) and the Plaintiffs'
Responses (Docs. 64 and 69).
Defendants U.S. Compounding Inc. (USCI) and Adamis
Pharmaceuticals Corporation (APC) move to dismiss Count V
(aiding and abetting breach of the duty of loyalty) as
preempted by the Florida Uniform Trade Secrets Act
(“FUTSA”) and Count VI (tortious interference
with contractual relationships) as insufficiently pled.
Defendant Hulsey moves to dismiss Counts IV (breach of the
duty of loyalty), VI, and VIII (civil conspiracy). Hulsey,
like the other Defendants, argues that, because those claims
“are based on the premise that Ms. Hulsey
misappropriated trade secret information belonging to
Plaintiffs, [they] are preempted by the Florida Uniform Trade
Secrets Act.” Doc. 65 at 4. Additionally, Hulsey
contends that the Plaintiffs' claims for breach of the
duty of loyalty and tortious interference with contractual
relationships are insufficiently pled. Doc. 65 at 4.
is a former employee of the Plaintiffs. As their employee,
Hulsey had access to confidential trade secret information,
and she was required to execute an Employee Confidentiality
and Non-Disclosure Agreement, which she signed on June 17,
2015. Sec. Amend. Compl. ¶ 26-28. Hulsey resigned on
August 24, 2018, after giving two weeks' notice.
Id. ¶ 36. Hulsey then went to work for USCI, a
direct Nephron competitor. Id. ¶ 40. Upon
learning that Hulsey had emailed a Nephron customer following
her resignation, Nephron began an investigation into
Hulsey's pre-resignation conduct. Nephron alleges that
Hulsey misappropriated Nephron's trade secrets based on
its findings from that investigation.
Motion to Dismiss
ruling on a motion to dismiss, the Court must view the
complaint in the light most favorable to the Plaintiff,
see, e.g., Jackson v. Okaloosa County, Fla., 21 F.3d
1531, 1534 (11th Cir. 1994), and must limit its consideration
to the pleadings and any exhibits attached thereto.
See Fed. R. Civ. P. 10(c); see also GSW, Inc. v.
Long County, Ga., 999 F.2d 1508, 1510 (11th Cir. 1993).
The Court will liberally construe the complaint's
allegations in the Plaintiff's favor. See Jenkins v.
McKeithen, 395 U.S. 411, 421 (1969). However,
“conclusory allegations, unwarranted factual deductions
or legal conclusions masquerading as facts will not prevent
dismissal.” Davila v. Delta Air Lines, Inc.,
326 F.3d 1183, 1185 (11th Cir. 2003).
reviewing a complaint on a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6), “courts must be
mindful that the Federal Rules require only that the
complaint contain ‘a short and plain statement of the
claim showing that the pleader is entitled to
relief.'” U.S. v. Baxter Intern.,
Inc., 345 F.3d 866, 880 (11th Cir. 2003) (citing
Fed.R.Civ.P. 8(a)). This is a liberal pleading requirement,
one that does not require a plaintiff to plead with
particularity every element of a cause of action. Roe v.
Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683
(11th Cir. 2001). However, a plaintiff's obligation to
provide the grounds for his or her entitlement to relief
requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
554-555 (2007). The complaint's factual allegations
“must be enough to raise a right to relief above the
speculative level, ” id. at 555, and cross
“the line from conceivable to plausible.”
Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009).
Florida Uniform Trade Secrets Act
state a claim under FUTSA, the plaintiff must allege that:
(1) it possessed secret information and took reasonable steps
to protect its secrecy; and (2) the secret information was
misappropriated, either by one who knew or had reason to know
that the secret was improperly obtained or by one who used
improper means to obtain it. See, e.g., Levenger
Co. v. Feldman, 516 F.Supp.2d 1272, 1287 (S.D. Fla.
2007); Del Monte Fresh Produce Co. v. Dole Food Co.,
136 F.Supp.2d 1271, 1291 (S.D. Fla. 2001); see also
Fla. Stat. § 688.002 (defining
“misappropriation” to include “Disclosure
or use of a trade secret ... without express or implied
consent by a person who ... knew or had reason to know that
her or his knowledge of the trade secret was ... derived from
or through a person who had utilized improper means to
acquire it.”). Misappropriation under FUTSA can also be
shown by alleging “[d]isclosure or use of trade secret
of another without express or implied consent by a person who
. . . [a]t the time of disclosure or use, knew or had reason
to know that her or his knowledge of the trade secret was . .
. [d]erived from or through a person who owed a duty to the
person seeking relief to maintain its secrecy or limit its
use.” Fla. Stat. § 688.002(2)(b)(2)(c).
Failure to State a Claim