Furmanite America, Inc. v. T.D. Williamson, Inc.

• Citation: 506 F.Supp.2d 1134
• Decision Date: 11 April 2007
• Docket Number: No. 6:06-cv-641-Orl-19JGG.,6:06-cv-641-Orl-19JGG.
• Parties: FURMANITE AMERICA, INC., Plaintiff, v. T.D. WILLIAMSON, INC., TDW Services, Inc., Greg Foushi, Jose Delgado, Saul Ferrer, James Jackson, Robert Jolin, Michael Mainelli, Rebecca Minervino, James Overstreet, Robert Schmidt, Nicole Turner, John Foushi and Bryan McDonald, Defendants.
• Court: U.S. District Court — Middle District of Florida

506 F.Supp.2d 1134

FURMANITE AMERICA, INC., Plaintiff, v. T.D. WILLIAMSON, INC., TDW Services, Inc., Greg Foushi, Jose Delgado, Saul Ferrer, James Jackson, Robert Jolin, Michael Mainelli, Rebecca Minervino, James Overstreet, Robert Schmidt, Nicole Turner, John Foushi and Bryan McDonald, Defendants.

No. 6:06-cv-641-Orl-19JGG.

United States District Court, M.D. Florida, Orlando Division.

April 11, 2007.

COPYRIGHT MATERIAL OMITTED

Daniel W. Matlow, Thomas K. Gallagher, Ruden, McClosky, Smith, Schuster & Russell, PA, Ft. Lauderdale, FL, for Plaintiff.

Richard D. Tuschman, Epstein Becker & Green, P.C., Neil F. McGuinness, Miami, FL, for Defendants.

ORDER

FAWSETT, Chief Judge.

This case comes before the Court on the following:

1. Motion for Summary Judgment (with Incorporated Memorandum of Law), filed by Defendants T.D. Williamson, Inc., TDW Services, Inc., and Bryan McDonald on December 29, 2006; (Doc. No. 101);

2. Former Employees' Motion for Summary Judgment (with Incorporated Memorandum of Law), filed by Defendants Greg Foushi, Jose Delgado, Saul Ferrer, James Jackson, Robert Jolin, Michael Mainelli, Rebecca Minervino, James Overstreet, Robert Schmidt, Nicole Turner, and John Foushi on December 29, 2006; (Doc. No. 102);

3. Plaintiff's Response to Defendants, T.D. Williamson, Inc., TDW Services, Inc., and Bryan McDonald's, Motion for Summary Judgment, filed by Plaintiff Furmanite America, Inc., ("Furmanite") on January 29, 2007; (Doc. No. 119); and

4. Plaintiffs Response to. Former Employees' Motion for Summary Judgment, filed by Furmanite on January 30, 2007. (Doc. No. 120).

Background

Furmanite and T.D. Williamson, Inc. are both firms which operate in the industrial pipeline repair industry. Prior to December of 2005, Furmanite employed Defendants Greg Foushi, Jose Delgado, Saul Ferrer, James Jackson, Robert Jolin, Michael Mainelli, Rebecca Minervino, James Overstreet, Robert Schmidt, Nicole Turner, John Foushi as employees in its Orlando, Florida service center. (E.g., Doc. No. 61, ¶ 24). On March 31, 2006, Greg Foushi, Jose Delgado, Saul Ferrer, James Jackson, Robert Jolin, Michael Mainelli, Rebecca Minervino, James Overstreet, Robert Schmidt, and Nicole Turner all resigned from their employment with Furmanite, allegedly without providing any advance notice of their resignations and leaving Furmanite's Orlando office without staffing.¹ (Id. at ¶ 31). On or about April 3, 2006, these individuals interviewed and completed paperwork to become employees of T.D. Williamson. (E.g., id. at ¶ 35; Doc. No. 101, p. 8, ¶ 12). The employees brought various items with them to T.D. Williamson. An employee for T.D. Williamson arranged to have a U-Haul truck pick up the employees' materials. (E.g., Doc. No. 120-31, pp. 7-8). It is undisputed that one of the items Greg Foushi and Michael Mainelli brought with them to T.D. Williamson from Furmanite is the ACT Database, a contact management software program. (E.g., Doc. No. 101, p. 9, ¶ 15).

The crux of the instant case is an alleged conspiracy on the part of the corporate² and individual Defendants³ to cripple Furmanite's Orlando office by having the former employees simultaneously resign on March 31, 2006 while also removing Furmanite's property and engaging in trade slander by disparaging Furmanite to its customers. (See generally Doc. No. 61). Furmanite alleges that Defendants' actions amount to tortious interference with business relationships, (Count I), Trade Slander, (Count II), a violation of Section 688.001 et seq., Florida Statutes, (Count III), breach of confidentiality agreements, (Count IV), conversion, (Count V), a violation of the Florida Unfair and Deceptive Trade Practices Act, (Count VI), economic boycott, (Count VII), civil conspiracy, (Count VIII), and a breach of the duty of loyalty on the part of John and Greg Foushi. (Count IX).⁴ TDW and the individual Defendants deny the above allegations, and Defendants Greg Foushi and Michael Mainelli counterclaim for breach of contract and unpaid commissions. (See generally Doc. Nos. 65, 66). TDW and the individual Defendants each move for summary judgment on all Counts of the Amended Complaint, arguing that no genuine issue of material fact exists and that Defendants are entitled to judgment as a matter of law. In the alternative, Defendants ask for partial summary judgment on those claims for which no genuine issue of material fact is present. Furmanite argues in response that genuine issues of material fact exist for all Counts of the Amended Complaint.

Standard of Review

Summary judgment is authorized "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate only in circumstances where "the evidence is such that a reasonable jury could [not] return a verdict for the nonmoving party." Id. The moving party bears the burden of proving that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In determining whether the moving party has satisfied its burden, a court considers all inferences drawn from the underlying facts in the light most favorable to the party opposing the motion and resolves all reasonable doubts against the moving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A court may not weigh conflicting evidence or weigh the credibility of the parties. See Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 919 (11th Cir.1993) (citation omitted). If a reasonable fact finder could draw more than one inference from the facts, and that inference creates an issue of material fact, then a court must not grant summary judgment. Id. (citation omitted).

Once a movant who does not bear the burden of proof on the pertinent claim or defense satisfies its initial burden under Rule 56(c) of demonstrating the absence of a genuine issue of material fact, the burden shifts to the party bearing the burden of proof on the pertinent claim or defense to come forward with specific facts showing that there is a genuine issue for trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th Cir.1993); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-movant must demonstrate that there is a material issue of fact that precludes summary judgments Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). "A mere `scintilla' of evidence supporting the [nonmoving] party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990) (citing Anderson, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202). "[T]he nonmoving party may avail itself of all facts and justifiable inferences in the record taken as a whole." Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir.1992) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)). All justifiable inferences are to be drawn in favor of the non-movant, and the evidence presented by the non-movant is to be believed by the court. Tipton, 965 F.2d at 999 (quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-159, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue of material fact remaining for trial. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (citing First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)) (internal quotation marks omitted).

Analysis

A. License

Defendants seek summary judgment on Furmanite's claims for lost business opportunities in Counts I though VIII, arguing that Furmanite cannot legally recover such damages because it was not licensed to perform "line stop" and "wet tap" services, and thus that it could not legally undertake these jobs under Section 489.128, Florida Statutes. This argument is not well taken.

First, an issue of fact exists as to whether Furmanite possessed a valid license. It is undisputed that prior to the resignation of John Foushi, Furmanite had no licensing problems because John Foushi was a licensed, qualified individual under Florida law. (E.g., Doc. No. 101, p. 10; Doc. No. 119, pp. 7-8). Furmanite claims, and John Foushi admits, that he granted Furmanite permission to use his license after he retired from the company. (Doc. No. 119-6, p. 7). However, John Foushi claims, and Furmanite denies, that he granted such permission with a condition that Furmanite's right to use his license would expire if his son, Greg Foushi, ever left the company. (E.g., Doc. No. 119-6, pp. 7-8; Doc. No. 119-5, p. 2). Thus, an issue of fact exists as to the scope of the agreement between John Foushi and Furmanite regarding Furmanite's right to use the Foushi license after the resignation of Greg Foushi.

Furthermore, TDW offers no evidence that Furmanite's claims for lost business opportunities encompass only claims for work for which a license was required. Section 489.128 only bars unlicensed contractors from enforcing contracts for work requiring a license. § 489.128, Fla. Stat. (2006). A license is not required for all potential work a contractor could conceivable undertake. See, e.g., id. at § 489.128(b) ("if no state or local license is required for the scope of work to be performed under the contract, the individual performing that work shall not be considered unlicensed."). In fact, an employee of TDW testified that its qualifying individual does not live in the State of Florida and only...