Nat'l Union Fire Ins. Co. of Pittsburgh v. Tyco Integrated Sec., LLC, Case No. 13-CIV-80371-BLOOM/Valle

• Decision Date: 24 June 2015
• Docket Number: Case No. 13-CIV-80371-BLOOM/Valle
• Court: U.S. District Court — Southern District of Florida
• Parties: NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, as subrogee Eli Lilly and Company, Plaintiff, v. TYCO INTEGRATED SECURITY, LLC, et al., Defendants.

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, as
subrogee Eli Lilly and Company, Plaintiff,
v.
TYCO INTEGRATED SECURITY, LLC, et al., Defendants.

Case No. 13-CIV-80371-BLOOM/Valle

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

June 24, 2015

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

This matter is before the Court upon Defendants, Tyco Integrated Security LLC and ADT Security Services Inc., a subsidiary of Tyco International Ltd., Co.'s Motion for Summary Judgment, ECF No. [176] ("Tyco MSJ") and Plaintiff National Union Fire Insurance Company of Pittsburgh, Pennsylvania, as subrogee of Eli Lilly and Company's Motion for Summary Judgment, ECF No. [189] ("NU MSJ") (collectively, the "Motions"). The Court has reviewed the Motions, the parties' submissions in support and opposition thereto, the record in this case, and is otherwise fully advised. For the reasons that follow, National Union's Motion is denied. Tyco's Motion is granted with respect to Count VIII of the Amended Complaint but denied in all other respects.

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I. INTRODUCTION

Defendants, Tyco Integrated Security LLC and ADT Security Services Inc., a subsidiary of Tyco International Ltd., Co. (collectively, "Tyco"),¹ provides premises security and monitoring equipment under separate contracts with Eli Lilly and Company (hereinafter, "Eli Lilly") for its sales offices and distribution warehouses. Amended Complaint, ECF No. [27] at ¶ 18. On March 14, 2010 at approximately 3:40 a.m., burglars robbed an Eli Lilly warehouse in Enfield, Connecticut (the "Enfield Facility"), stealing pharmaceuticals valued in excess of $60,000,000. See id. at ¶ 51. According to the Amended Complaint, the burglars avoided detection by utilizing details of the Enfield Facility's layout and vulnerabilities of the surveillance and intrusion detection systems outlined by Tyco in a confidential system proposal generated in 2010 (the "2010 Confidential System Proposal"). Id. at ¶ 55. As a result, Plaintiff National Union Fire Insurance Company of Pittsburgh, Pennsylvania (hereinafter, "National Union"), as subrogee of Eli Lilly, commenced this action on April 16, 2013, asserting claims against Tyco for negligence (Count I), failure to safeguard confidential information (Count II), and failure to disclose/warn (Count III), stemming from Tyco's alleged inability to maintain the security of the confidential information contained in the 2010 Confidential System Proposal. See Amend. Compl., ECF No. [27] at ¶¶ 94-144. Additionally, National Union contends that Tyco violated the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA") by making false claims of "fidelity and care with regard to safeguarding Eli Lilly's security systems," and made untrue representations regarding the company's nature as "safe, responsible, state of the art, and as possessing specialized knowledge and expertise in security safety equipment and monitoring

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systems capable of safeguarding the confidentiality of Eli Lilly's security infrastructure and existing system" (Count VII). Id. at ¶¶ 164-73.²

After substantial discovery and pre-trial litigation, the parties now move for summary judgment on issues concerning whether Florida or Connecticut law applies, the application of a contractual subrogation waiver, and the sufficiency of evidence as to causation, damages, and National Union's claim based on FDUTPA. See Motions, ECF Nos. [176] and [189]. Following review of the vast record presented, the Court finds that National Union's FDUTPA claim is the only issue susceptible to judgment as a matter of law.

II. FACTUAL BACKGROUND

At the outset, this Court is obligated to express concern regarding the presentation of evidence in this matter. A summary judgment movant's initial burden consists of a "responsibility [to] inform [ ] the . . . court of the basis for its motion and [to] identify[ ] those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Although the Court has required the parties to submit indices to their submissions in order to aid in the Court's dissection of the voluminous record, the Court has, nonetheless, encountered a variety of challenges in properly reviewing this case. As a representative example, National Union, in its Statement of Facts, asserts that the "IT information produced in this matter was gathered [] 'at the Tyco facility in Boca.'" See

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Plaintiff's Statement of Undisputed Material Facts, ECF No. [190] ("NU SOF") at ¶ 29. This simple assertion cites three exhibits in support, totaling over three hundred pages of deposition testimony. See ECF Nos. [173-4], [173-5], and [173-6]. The single pincite included with the statement not only references the improper docket entry related to the quotation, but also the incorrect page of the correct docket entry. ECF No. [173-5] at 122:19-24. This is but one example of innumerable instances evincing a complete lack of precision that has been encountered by the Court throughout its review of the Motions. "Judges are not like pigs, hunting for truffles buried in briefs." See United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (Posner, J.). "Likewise, district court judges are not required to ferret out delectable facts buried in a massive record." Chavez v. Sec'y Florida Dep't of Corr., 647 F.3d 1057, 1061 (11th Cir. 2011). Judge Posner's admonishment applies with equal force here. On multiple occasions, the parties have frustrated the expeditious resolution of these Motions by failing to specifically cite to relevant portions of the record.

Nevertheless, the following material facts have been garnered from the parties' submissions. The Court hesitates to use the term "undisputed," as the parties contest nearly every shred of evidence presented. Compare NU SOF, ECF No. [190] and Tyco's Statement of Undisputed Facts, ECF No. [177] ("Tyco SOF") with Tyco's Response to NU SOF, ECF No. [246] ("Tyco Resp. SOF") and Plaintiff's Response to Tyco SOF, ECF No. [245] ("NU Resp. SOF").³ The Court sets forth the following relevant facts.⁴

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A. The Parties and Tyco's Related Operations

1. Eli Lilly is a pharmaceutical company incorporated in the State of Indiana with its principal place of business in Indianapolis, Indiana. NU SOF, ECF No. [190] at ¶ 19; Tyco Resp. SOF, ECF No. [246] at ¶ 19.

2. National Union is a Pennsylvania corporation with its principal place of business in New York. NU SOF, ECF No. [190] at ¶ 20; Tyco Resp. SOF, ECF No. [246] at ¶ 20.

3. While Tyco is incorporated in Delaware, it maintains its North America headquarters in Boca Raton, Florida. NU SOF, ECF No. [190] at ¶ 24; Tyco Resp. SOF, ECF No. [246] at ¶ 24.⁵

4. Accordingly, Tyco's human resources and legal departments are located in Boca Raton, and various high-level employees operate out of the Boca Raton headquarters. NU SOF, ECF No. [190] at ¶¶ 25, 30; Tyco Resp. SOF, ECF No. [246] at ¶¶ 25, 30.

5. Tyco maintains central computer servers in Jacksonville, Florida and Aurora, Colorado, and other locations. See Deposition of Tom Dennison, ECF No. [237-5] ("Dennison Deposition") at 58:7-11, 61:14-16 ("Q: Where is the command center?

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A: At that period of time the command center was located in Jacksonville, Florida.").

6. Tyco conducted its information technology operations in Boca Raton and Jacksonville, Florida, including vulnerability scans, audit results and other security tests. See Dennison Deposition, ECF No. [173-15] at 15:10-16:13, 17:3-19:2, 21:2-9, 22:2-15, 31:11-34:10, 40:12-41:25, 58:23-59:7, 100:7-101:11 (discussing the various security operations) (further citations omitted).

7. Tyco's Jacksonville office contains a data center with "large computer servers" running various software applications for Tyco, including a type of monitoring software. See Deposition of James Mooney, ECF No. [173-26] ("Mooney Deposition") at 66:6-68:8; ECF No. [173-25] at 64:13-18.

B. The Contract and the 2010 Confidential System Proposal

8. On November 18, 2004, Tyco⁶ and Eli Lilly entered into a "Commercial Sales Proposal Agreement" (the "2004 Contract"), wherein Tyco agreed to install various security measures at the Enfield Facility. See 2004 Contract, ECF No. [245-2]. The 2004 Contract was contained in multiple Commercial Sales Proposal/Agreements and riders executed contemporaneously. See id.

9. The 2004 Contract provided for automatic renewal, id. at 3, 6, 10, which states the following:

In addition for the service(s) to be provided as indicated above, Customer agrees to pay $760 per month ($2,280/quarter or $9,120/year) per annum, annually in advance for a period of five years effective from the date service is operative under this agreement. After the five years, this agreement shall be

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automatically renewable yearly unless terminated by either party upon written notice at least 30 days prior to the anniversary date.

10. Additionally, the 2004 Contract contained

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