Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Temurian v. Piccolo

United States District Court, S.D. Florida

November 13, 2019

ARMEN A. TEMURIAN, et al, Plaintiffs,
v.
PHILLIP A. PICCOLO, JR., et al, Defendants.

          ORDER ON MOTION TO DISMISS SECOND AMENDED COMPLAINT

          RODNEY SMITH UNITED STATES DISTRICT JUDGE

         THIS CAUSE is before the Court on Defendants' Motion to Dismiss Second Amended Complaint (“Motion to Dismiss”) (ECF No. 74). Defendants seek dismissal of Plaintiffs' Second Amended Complaint (ECF No. 71) for lack of subject matter jurisdiction, or, alternatively, dismissal of Counts 1, 2, 3, 4, 11, 12, 13, 14, 15, 16, 18, and 19 of the Second Amended Complaint for failure to state a claim. The Court has carefully reviewed the Motion to Dismiss, Plaintiffs' Response (ECF No. 96), Defendants' Reply (ECF No. 99), the applicable law, and the record as a whole.

         I. BACKGROUND

         The factual background of this case has been set forth previously in the Court's Order on Defendants' Motion to Dismiss the First Amended Complaint (ECF No. 59), and the factual allegations of the Second Amended Complaint are substantially similar to those of the First. Briefly, this case arises as a result of a breakdown in the relationship between Plaintiffs, Armen A. Temurian (“Temurian”) and Vista Technologies LLC (“Vista”) (together, “Plaintiffs”) and Defendants, Phillip A. Piccolo, Jr. (“Piccolo”), Kevin Dalton Johnson (“Johnson”), and Paul Morris (“Morris”) (collectively, the “PJM Defendants”), based on Defendant Joseph Reid's (“Reid”) recommendation that Plaintiffs hire the PJM Defendants to develop a back office software system and interface for Vista (“Back Office”). Plaintiffs allege that, among other things, Defendants misappropriated Vista's trade secrets, stole Vista's assets, fraudulently used Vista's customer lists, trafficked passwords, and misled customers to use Defendant Travelada, LLC (“Travelada”), an inactive limited liability company whose only members were the PJM Defendants. The Second Amended Complaint adds two additional Defendants: (1) George Foerst, doing business as Travelada International (“Travelada International”); and (2) K.F.I. Software (“K.F.I”), a Florida partnership consisting of Johnson and Piccolo.

         Vista is a technology company that sells a hardware product called the Vista Mini Miner (“Mini Miner”) (Second Amended Complaint (“SAC”) ¶ 24). As Vista was preparing for the release of its Mini Miner product, it began searching for a developer to create a custom-built administrative software suite to manage its sales and shipping, handle its records, and give Vista and its customers a platform to monitor Mini Miner usage, which it calls the Back Office (id. ¶ 26). The Back Office would store confidential and proprietary electronic data necessary to access the digital wallets that contain Vista and its customers' funds (id. ¶ 27). In November 2017, Temurian met Reid, who introduced him to Piccolo and Johnson and recommended that he hire them to build Vista an administrative software suite (id. ¶ 28). Plaintiffs allege that, in recommending Piccolo and Johnson, Reid failed to inform Plaintiffs of prior allegations of fraudulent behavior made against Piccolo, and purposefully misled Plaintiffs about Piccolo's and Johnson's qualifications so that they could commit a series of fraudulent schemes upon Plaintiffs (id. ¶ 30).

         On or about December 5, 2017, Temurian, on behalf of Vista, met in Florida with Piccolo and Johnson, along with Morris (id. ¶¶ 33-34). Temurian entered into an oral agreement with the PJM Defendants, which included, in pertinent part, that the PJM Defendants would customize and deliver the Back Office by February 2018; Vista would immediately acquire ownership of the Back Office; Vista would acquire other companies, including Travelada; and the PJM Defendants would relinquish control of the Back Office to Vista upon its completion (id. ¶ 34). On January 26, 2018, Plaintiffs executed a written contract with Piccolo and Johnson, doing business as K.F.I., in return for assets and a 10% ownership interest in all of Vista's current and future direct and indirect entities (id. ¶¶ 39-42; ECF No. 43-1 (the “Agreement”)).

         The parties' relationship quickly soured. Throughout the course of their business dealings, Plaintiffs allege that Defendants committed a series of fraudulent acts and schemes, including: (1) creating false customer profiles using access to the Back Office (id. ¶ 46); (2) perpetrating a scheme to convert Vista's cryptocurrency (id. ¶¶ 47-59); (3) fraudulently ordering and shipping Mini Miners (id. ¶¶ 60-71); (4) laundering fraudulent gains procured through various Vista accounts (id. ¶¶ 72-75); (5) disabling Vista's access to the Back Office (id. ¶¶ 76-85); (6) using Vista's customer list to send out emails to customers whilst impersonating Vista (id. ¶¶ 86-115); and (7) extorting Vista by offering to lease the Back Office back to Plaintiffs for a fee or threatening to shut off the software and delete Plaintiffs' data unless Defendants were paid large sums of money (id. ¶¶ 116-120).

         Plaintiffs filed their original Complaint (ECF No. 1) in this Court on November 9, 2018. Plaintiffs filed their First Amended Complaint (ECF No. 33) as a matter of course on January 7, 2019. On April 22, 2019, the Court entered an Order (ECF No. 59) granting Defendants' Motion to Dismiss the First Amended Complaint (ECF No. 36), and permitting Plaintiffs to file a Second Amended Complaint. The operative Second Amended Complaint was filed on May 3, 2019 (ECF No. 71), and pleads a total of twenty counts against Defendants, including breach of oral contract against the PJM Defendants (Count 1); promissory estoppel against the PJM Defendants (Count 2); breach of written contract against K.F.I. Software, Piccolo, and Johnson (Count 3); breach of duty of good faith and fair dealing against Piccolo and Johnson (Count 4); conversion counts against the PJM Defendants, Travelada, and Travelada International (Count 5), Johnson (Counts 6, 8), and the PJM Defendants (Count 9); civil theft against Johnson (Count 7); unjust enrichment against Johnson (Count 10); tortious interference against Travelada and Travelada International (Count 11); trademark infringement and unfair competition under the Lanham Act and common law against Travelada and Travelada International (Counts 12-13); unauthorized trafficking of password information under the Computer Fraud and Abuse Act (“CFAA”) (Count 14); misappropriation of trade secrets under the Defend Trade Secrets Act (“DTSA”) and Florida's Uniform Trade Secrets Act (“FUTSA”) against the PJM Defendants, Travelada, and Travelada International (Counts 15-16); breach of fiduciary duty against K.F.I. and the PJM Defendants (Count 17); aiding and abetting a breach of fiduciary duty against Reid (Count 18); civil conspiracy against the PJM Defendants, Reid, Travelada, and Travelada International (Count 19); and usurpation of partnership opportunities and misuse of partnership assets against K.F.I. and the PJM Defendants (Count 20).

         In the present Motion to Dismiss, Defendants request dismissal of the entire Second Amended Complaint for lack of subject matter jurisdiction. Alternatively, Defendants seek dismissal of Counts 1, 2, 3, 4, 11, 12, 13, 14, 15, 16, 18, and 19.

         II. DISCUSSION

         A. Subject Matter Jurisdiction

         1. Legal Standard

         Federal courts have limited subject matter jurisdiction, and the party invoking the court's jurisdiction bears the burden of proving it exists. McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002). A district court must have at least one of three types of subject matter jurisdiction: “(1) jurisdiction under a specific statutory grant; (2) federal question jurisdiction pursuant to 28 U.S.C. § 1331; or (3) diversity jurisdiction pursuant to 28 U.S.C. § 1332(a).” Baltin v. Alaron Trading Corp., 128 F.3d 1466, 1469 (11th Cir. 1997).

         A motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) takes one of two forms: a “facial attack” or a “factual attack.” “A ‘facial attack' on the complaint ‘require[s] the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion.'” McElmurray v. Consol. Gov't of Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007) (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). “A ‘factual attack,' on the other hand, challenges the existence of subject matter jurisdiction based on matters outside the pleadings.” Kuhlman v. United States, 822 F.Supp.2d 1255, 1256-57 (M.D. Fla. 2011) (citing Lawrence, 919 F.2d at 1529).

         “In assessing the propriety of a motion for dismissal under Fed.R.Civ.P. 12(b)(1), a district court is not limited to an inquiry into undisputed facts; it may hear conflicting evidence and decide for itself the factual issues that determine jurisdiction.” Colonial Pipeline Co. v. Collins, 921 F.2d 1237, 1243 (11th Cir. 1991). As such, “[w]hen a defendant properly challenges subject matter jurisdiction under Rule 12(b)(1) the district court is free to independently weigh facts, and ‘may proceed as it never could under Rule 12(b)(6) or Fed.R.Civ.P. 56.'” Turcios v. Delicias Hispanas Corp., 275 Fed.Appx. 879, 880 (11th Cir. 2008) (quoting Morrison v. Amway Corp., 323 F.3d 920, 925 (11th Cir. 2003)).

         2. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.