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. 75 and 76) and the
Plaintiffs' Responses (Docs. 77 and 78).
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. Third Amend. Compl. ¶ 26-28. Hulsey resigned on
August 24, 2018, after giving two weeks' notice.
Id. ¶ 37. Hulsey then went to work for U.S.
Compounding, Inc. (“USCI”),  a direct Nephron
competitor. Id. ¶ 41. Upon learning that Hulsey
had emailed a Nephron customer following her resignation,
Nephron began an investigation into Hulsey's
pre-resignation conduct. Among other things, Nephron alleges
that Hulsey misappropriated Nephron's trade secrets based
on its findings from that investigation. The Third Amended
Complaint alleges violation of the Federal Defend Trade
Secrets Act against all Defendants (Count I); Breach of
Contract against Hulsey (Count II); violation of the Florida
Uniform Trade Secrets Act against all Defendants (Count III);
breach of the duty of loyalty against Hulsey (Count IV);
aiding and abetting a breach of the duty of loyalty against
Adamis and U.S. Compounding (“USCI”) (Count V);
tortious interference with business relationships against all
Defendants (Count VI); intentional interference with
advantageous relationships against USCI and Adamis (Count
VII); and civil conspiracy against all Defendants (Count
VIII). USCI and Adamis move to dismiss Counts V, VI, and
VIII. Hulsey moves to dismiss Counts IV, VI, and
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).
preempts “conflicting tort, restitutory, and other
law[s] of this state providing civil remedies for
misappropriation of a trade secret.” Fla. Stat. §
688.008(1). Common law claims based on a theory of
misappropriation of trade secrets are preempted by FUTSA
unless the allegations are separate and have material
distinctions. ThinkLite LLC v. TLG Sols., LLC, No.
16-civ-24417, 2017 WL 5972888, at *4 (S.D. Fla. Jan. 31,
2017). If the trade secret misappropriation alone comprises
the underlying wrong, the action is preempted. Allegiance
Healthcare Corp. v. Coleman, 232 F.Supp.2d 1329, 1336
(S.D. Fla. 2002).
Count IV and Count V: Breach of the Duty of Loyalty and
Aiding and Abetting a Breach of the Duty of Loyalty
IV alleges breach of the duty of loyalty against Hulsey.
“The elements of a breach of fiduciary duty claim are:
(1) the existence of a fiduciary duty; (2) the breach of that
duty; and (3) damage proximately caused by that
breach.” Border Collie Rescue, Inc. v. Ryan,
418 F.Supp.2d 1330, 1342 (M.D. Fla. 2006). Additionally, an
employee “may not engage in disloyal acts in
anticipation of his future competition.” Bank of
Am., N.A. v. Crawford, No. 2:12-civ-691-FTM-99, 2013 WL
593743, at *3 (M.D. Fla. Feb. 15, 2013) (internal quotations
omitted). Most of the allegations in Count IV are plagued by
the same insufficiency found in the Second Amended Complaint.
The only new allegations that could amount to a breach of the
duty of loyalty are the claims that Hulsey attempted to poach
Nephron employees and customers. However, there is not an
adequate claim of damages for either allegation; there is no
indication that any Nephron employees or customers actually
left as a result of Hulsey's poaching ...