United States District Court, M.D. Florida, Fort Myers Division
LOUMAC DISTRIBUTORS - U.S. LBM, LLC, a Delaware Limited Liability Company, Plaintiff,
LOUIS LUONGO, III, ALL GLASS & WINDOWS, LLC, DIRECT WINDOW & DOOR SUPPLY, INC. and AGW SRQ, INC., Defendants.
OPINION AND ORDER 
Polster Chappell, Judge
matter comes before the Court on Defendants All Glass &
Windows LLC, Direct Window & Door Supply Inc., and AGW
SRQ Inc.'s Partial Motion to Dismiss Count IV (Doc. 63)
filed on July 24, 2019. Plaintiff filed a Response in
Opposition (Doc. 71) and Defendants replied (Doc. 74). For
the reasons below, the Motion is granted in part and denied
in part with leave to amend.
action arises from an employment relationship gone sour.
These facts are based on the Amended Complaint (Doc. 52),
which the Court must accept as true at this stage of
litigation: LouMac Distributors - U.S. LBM, LLC
(“LouMac”) is a leading building material
distributor in Southwest Florida, which is a highly
competitive industry. LouMac's success depends largely on
its trade secrets and proprietary and confidential
information, as well as the relationships and good will is
has developed with customers, suppliers, and vendors. Louis
Luongo, III was formerly employed by LouMac as Executive
Sales Manager pursuant to an Employment Agreement that
contains restrictive covenants. In his position, Luongo was
entrusted with LouMac's trade secrets and confidential
and proprietary information. In addition, Luongo was one of
the previous owners of LouMac Distributors, Inc., and one of
the original majority founders of that corporation. That
corporation's assets were purchased by Plaintiff in
September 2015 pursuant to an Asset Purchase Agreement
(“APA”), which also contains restrictive
terminated Luongo's employment as an Executive Sales
Manager on February 12, 2018. Thereafter, Luongo went to work
for Direct Window, All Glass, and/or AGW SRQ, Inc.
(hereinafter “Defendants”), and breached his
duties to LouMac by misappropriating and using LouMac's
trade secrets and confidential and proprietary information
with which he was entrusted. Upon information and belief,
after leaving LouMac, Luongo immediately began secretly
diverting business from LouMac to Defendants in breach of the
employment agreement and APA. And Defendants encouraged and
facilitated Luongo and conspired with Luongo to hide their
relationship from LouMac in the market. This activity caused
irreparable harm and damages to LouMac and significantly
damaged LouMac's ability to compete in the Southwest
has filed a seven-count Amended Complaint (Doc. 52) but only
one count is at issue here - Count IV for conversion against
all Defendants. Defendants have answered all the other
counts. (Docs. 56, 57).
Rule of Civil Procedure 12(b)(6) allows a defendant to move
to dismiss a pleading for “failure to state a claim
upon which relief may be granted.” Fed.R.Civ.P.
12(b)(6). “To survive a motion to dismiss [under Rule
12(b)(6)], a complaint must contain 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)). Although this pleading standard
“does not require ‘detailed factual
allegations,' . . . it demands more than an unadorned the
Id.(quoting Twombly, 550 U.S. at 555). The
pleading must contain “more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550
U.S. at 555.
deciding a Rule 12(b)(6) motion, a court must accept
well-pleaded allegations of a complaint as true, but it is
not bound to accept legal conclusions couched as facts.
Iqbal, 556 U.S. at 678. And “where the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged- but it has not ‘show[n]'- ‘that the
plaintiff is entitled to relief.'” Id.
(quoting Fed.R.Civ.P. 8(a)(2)). If a plaintiff has not
“nudged [his] claims across the line from conceivable
to plausible, ” the complaint fails to state claim.
Twombly, 550 U.S. at 570.
Failure to State a Claim
“Under Florida law, the elements of conversion are (1)
an act of dominion wrongfully asserted; (2) over
another's property; and (3) inconsistent with his
ownership therein.” Joe Hand Promotions, Inc. v.
Creative Entm't, LLC, 978 F.Supp.2d 1236, 1241 (M.D.
Fla. 2013). Defendants argue that Count IV never alleges that
Defendants wrongfully asserted such dominion and
control over LouMac's trade secrets and confidential
proprietary information, only that Luongo did so. Plaintiff
responds that its allegations are sufficient (with no
citation to authority) because it alleges that Defendants
“knowingly accepted the benefits of Luongo's
wrongful conduct” and “directly encouraged,
participated in, and induced Luongo's breach of his legal
obligations to LouMac. . . .” (Doc. 52 at ¶ 3).
so, Plaintiff does not allege that Defendants asserted
dominion and control over LouMac's property, only that
they accepted the benefits and participated in Luongo's
wrongful conduct. The Court will not read facts into the
Amended Complaint that are not specifically alleged, and
thus, the Court will dismiss Count IV without prejudice and
allow Plaintiff to amend. The Court further notes that
Plaintiff alleges that “[a]fter this lawsuit was
served, Direct Window, All Glass, and AGW notified LouMac
that their relationship with Luongo had been formally
terminated and that Luongo no longer had any relationship
with Direct Window, All Glass, or AGW.” (Doc. 52 at
¶ 33). Therefore, the Court questions whether Defendants
would even still be in possession of any of Plaintiff's
property that it should be required to return. Plaintiff
should clarify this if it choses to file a second amended