United States District Court, S.D. Florida
ARMEN A. TEMURIAN, et al, Plaintiffs,
PHILLIP A. PICCOLO, JR., et al, Defendants.
ORDER ON MOTION TO DISMISS SECOND AMENDED
SMITH UNITED STATES DISTRICT JUDGE
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.
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.
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.
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
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).
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).
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.
Subject Matter Jurisdiction
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).
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).
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)).