Temurian v. Piccolo
| Decision Date | 19 April 2019 |
| Docket Number | Case No. 18-cv-62737-BLOOM/Valle |
| Parties | ARMEN A. TEMURIAN and VISTA TECHNOLOGIES, LLC, Plaintiffs, v. PHILLIP A. PICCOLO, JR., KEVIN DALTON JOHNSON, PAUL MORRIS, JOSEPH REID, and TRAVELADA, LLC, Defendants. |
| Court | U.S. District Court — Southern District of Florida |
THIS CAUSE is before the Court upon Defendants Phillip A. Piccolo, Jr., Kevin Dalton Johnson, Paul Morris, Joseph Reid, and Travelada LLC's (collectively, "Defendants") Motion to Dismiss Amended Complaint for Failure to State a Claim, ECF No. [36] (the "Motion"). The Court has reviewed the Motion, all supporting and opposing filings, the record in this case, and the applicable law, and is otherwise fully advised. For the reasons that follow, the Motion is GRANTED.
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, "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"). In the First Amended Complaint, ECF No. [33], Plaintiffs allege that, among other things, Defendants misappropriated Vista's trade secrets, stole Vista's assets, fraudulently used Vista's customer lists, and misled customers to use Travelada, LLC ("Travelada"). ECF No. [33] ¶¶ 1-7.
Vista is a technology company that sells a hardware product called the Vista Mini Miner ("Mini Miner"). Id. ¶ 18. Before the release of the Mini Miner, Vista searched 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. ¶ 22. The Back Office would store confidential and proprietary electronic data necessary to access the digital wallets that contain Vista and its customers' funds. Id. ¶ 23. In November 2017, Temurian met Reid, who introduced him to Piccolo and Johnson. Id. ¶ 24. Plaintiffs allege that Reid represented Piccolo and Johnson to be close acquaintances he had known for decades, and that they were "trustworthy," "legitimate" software developers, and recommended that Vista hire them as a software development team. Id.
Plaintiffs allege that on or about December 5, 2017, Temurian went to Florida on behalf of Vista to meet with the PJM Defendants, including Morris, who Temurian met on or about that day as well. Id. ¶ 26. Temurian entered into an oral agreement with the PJM Defendants, which included, in pertinent part, that "(1) the Back Office was to be delivered by February 2018; (2) Vista would maintain ownership of the Back Office; (3) Temurian would acquire Travelada; and (4) the PJM Defendants would relinquish control of the Back Office to Vista upon its completion." Id. In return for their efforts, the PJM Defendants would receive $2,000 per business day in bitcoin until completion of the job. Id. In order to develop the Back Office, the PJM Defendants were allowed temporary special access of Vista's records, sales logs, customer profiles, and customer lists to upload information into the Back Office. Id. ¶ 28. Plaintiffs allege that such informationwas confidential, password-protected, and contained proprietary and trade secret information. Id. ¶¶ 28, 31.
Plaintiffs also contend that on or about January 20, 2018, the PJM Defendants registered the domain name, Vistaone.network, without Plaintiffs' authorization. It features the exact same Vista logo, same or similar Vista web design, and purports to sell Mini Miners. Id. ¶ 32. On January 26, 2018, Plaintiffs executed a written contract with Piccolo and Johnson, doing business as K.F.I. Software, in return for assets and a 10% ownership interest in all of Vista's current and future direct and indirect entities. Id. ¶ 34; ECF No. [43-1] (the "Agreement"). Plaintiffs further allege that on January 31, 2018, Johnson fraudulently transferred 50 bitcoin and 100 ether from Vista's digital cryptocurrency wallet, and that on February 2, 2018, Morris transferred 8 bitcoin and 8 ether from Vista's digital wallet into his own wallet. ECF No. [33] ¶¶ 37-38. In February 2018, Johnson and Reid created false customer profiles and received thousands of dollars in unearned commissions. Id. ¶¶ 39-41.
Between February 26, 2018 and March 20, 2018, Johnson used his Back Office access to order twelve Mini Miners, each of which was worth approximately $1,495.00, totaling $17,940.00 to ship to twelve individuals. Id. ¶ 44. Johnson also deleted orders and pocketed the revenue for at least two Mini Miner orders place on March 8, 2018 and March 27, 2018. Id. ¶ 46. Between February and May 2018, Vista allegedly received many complaints from customers that amounts appeared and disappeared in their cryptocurrency accounts without explanation. Id. ¶ 48. As a result of the unauthorized transfers, the goodwill and reputation Vista has built among its customers has been eroded. Id. ¶ 50.
On or around March 29, 2018, Temurian met with the PJM Defendants, after finding out about the PJM Defendants' schemes. Id. ¶ 51. Shortly after the meeting, the PJM Defendantsaltered and deleted incriminating information, disabled Plaintiffs' ability to log into the Back Office, and "made it impossible to get a full and complete understanding of the nature of their fraud or the extent of the damages they caused." Id. ¶ 52-53. The PJM Defendants and Travelada also used Vista's customer list to send mass email solicitations that reference Vista's product offerings to advertise their Travelada business to Vista's customers and made prominent references to Vista's trade name or the Mini Miner mark. Id. ¶¶ 55-70. Johnson and Piccolo have used threats to extort Vista. Id. ¶ 76.
As a result, Plaintiffs assert numerous claims against Defendants, including breach of contract against the PJM Defendants (Count 1); conversion against the PJM Defendants and Travelada, Johnson, Reid and Morris (Counts 2-5); fraudulent misrepresentation against Reid (Count 6); fraudulent concealment against the PJM Defendants and Reid (Count 7); fraud in the inducement against the PJM Defendants and Reid (Count 8); tortious interference against the PJM Defendants and Travelada (Count 9); civil conspiracy against the PJM Defendants, Reid, and Travelada (Count 10); trademark infringement and unfair competition under the Lanham Act and common law against the PJM Defendants and Travelada (Counts 11-12); violations of the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA") against the PJM Defendants and Travelada (Count 13); unjust enrichment against Johnson and Reid (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 (Counts 15-16); constructive trust against the PJM Defendants (Count 17); breach of fiduciary duty against Piccolo and Johnson (Count 18); and aiding and abetting a breach of fiduciary duty against Reid (Count 19). See id. ¶¶ 81-233.
In the instant Motion, Defendants request dismissal of part of Count 3 based on the alleged stealing of revenue for two Mini Miner orders against Johnson, Counts 4, 6-13, and 15-17.
A pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Although a complaint "does not need detailed factual allegations," it must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (). In the same vein, a complaint may not rest on "'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (alteration in original)). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. These elements are required to survive a motion brought under Rule 12(b)(6) of the Federal Rules of Civil Procedure, which requests dismissal for "failure to state a claim upon which relief can be granted."
When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the plaintiff's allegations as true and evaluate all plausible inferences derived from those facts in favor of the plaintiff. See Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F. Supp. 2d 1349, 1353 (S.D. Fla. 2009). However, this tenet does not apply to legal conclusions, and courts "are not bound to accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555; see Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cty. Sheriff's Office, 449 F.3d 1342, 1352 (11th Cir. 2006). Moreover, "courts may infer from the factual allegations in the complaint 'obvious alternative explanations,' which suggest lawful conduct rather than the unlawful conduct the plaintiff would ask the court to infer." Am. Dental Ass'n v. Cigna Corp., 605F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 682). A court considering a Rule 12(b) motion is generally limited to the facts contained in the complaint and attached exhibits, including documents referred to in the complaint that are central to the claim. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); Maxcess, Inc. v. Lucent Techs., Inc., 433 F.3d 1337, 1340 (11th Cir. 2...
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