Order of the United States District Court for the Southern District of Florida denying Defendant's Motion to Dismiss various claims, including claims for false advertising and defamation per se. The at issue advertisements and statements consisted of the following: A company allegedly advised numerous customers and vendors in the industry that the plaintiff had stolen its trade secrets and engaged in illegal conduct.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case Number: 9:18-CV-80038-Rosenberg/Reinhart
DENIS TASLIDZIC and
TITANS PROTECTIVE COATINGS, LLC,
Plaintiffs,
v.
PETER LUTHER and
PRIME TECH COATINGS, INC.,
Defendants.
_______________________________________/
ORDER ON DEFENDANTS’ MOTION TO DISMISS (DE 17)
This matter is before the Court on the Defendant’s Motion to Dismiss the Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). On May 2, 2018, the parties filed a limited
consent (DE 31), authorizing the undersigned U.S. Magistrate Judge to enter an order of final
disposition on the pending dispositive motion. The undersigned has reviewed the Complaint
(DE 1), the Motion to Dismiss (DE 17), Plaintiffs’ Response in Opposition (DE 22), and the
Defendants’ Reply (DE 24). The Court heard oral argument on the motion on May 16, 2018.
This matter is ripe for decision.
FACTS ALLEGED IN THE COMPLAINT
The following constitute the material facts alleged in the Complaint.1
All paragraph
citations (noted as “¶” or “¶¶”) are references to the numbered paragraphs in the Complaint:
1
For purposes of this Motion, the Court accepts all well-pled factual allegations in the Complaint as true
and evaluates all plausible inferences derived from those facts in favor of the Plaintiff. See Chaparro v.
Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 20112); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp.,
LLC, 608 F. Supp. 2d 1349, 1353 (S.D. Fla. 2009) (“On a motion to dismiss, the complaint is construed in
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Plaintiff Titans Protective Coatings, LLC (Titans) and Defendant Prime Tech Coatings,
Inc. (Prime Tech) are competitors in the industrial coating services industry. ¶17. Industrial
coating companies typically provide services that include industrial painting on location or
within a facility, wet and dry sandblasting, ceramic and powder coatings, waterproofing, and
cement repair services. ¶18. General contractors are the primary customers of companies
offering industrial coating services. ¶19. General contractors hire subcontractors like Titans and
Prime Tech to perform coating work on various projects. Id. The general contractors solicit bids
for these projects and award them based on numerous factors including pricing, the
subcontractor’s experience and quality of work, and prior experience with the subcontractor.
¶20. In order to complete these projects, companies like Titans and Prime Tech acquire the
necessary materials (e.g., paints, coatings, sealants, etc.) from the same network of vendors. ¶21.
Obtaining favorable pricing from vendors is essential in preparing “competitive bids while
maintaining strong margins.” ¶26. During his 12 years in the industry, Plaintiff Taslidzic
“developed his own method of pricing bids.” Id. He also “developed a reputation with many
general contractors that trust his work product and bid pricing.” ¶22.
Plaintiff Taslidzic began working for Defendants in September 2013 as an estimator and
project manager. ¶27. According to the Complaint, Taslidzic “significantly increased Prime
Tech’s bid-win rate and revenue.” ¶30. In January 4, 2015, Taslidzic advised Defendant Luther
that he intended to resign from Prime Tech and start his own competing company. ¶32.2
According to Taslidzic, “Luther was outraged and immediately began threatening to sue
Taslidzic and destroy his reputation in the industry.” ¶36.
the light most favorable to the non-moving party, and all facts alleged by the non-moving party are
accepted as true.”).
2
Taslidzic was “never subject to any employment agreement, confidentiality agreement, non-disclosure
agreement, non-solicitation agreement, or non-compete agreement.” ¶31.
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Following Taslidzic’s departure from Prime Tech, “Luther embarked on a campaign to
destroy Plaintiffs’ business reputations.” Luther targeted his efforts at the general contractors
who are the “primary customers and the lifeblood” of both Titans’ and Prime Tech’s businesses,
as well as vendors that both companies use. ¶38. According to the Complaint,
Luther, individually and as an agent of Prime Tech, made written and oral false
and misleading representations of fact regarding Plaintiffs’ commercial activities
and reputations. Specifically, Luther told multiple general contractors and vendors
that Plaintiffs had stolen Prime Tech’s proprietary information and trade secrets,
were using stolen Prime Tech information to bid on projects, stole Prime Tech’s
clients and had engaged in criminal conduct. Luther further represented to
customers and vendors throughout the industry that they would face potential
liability and risk involvement in a major lawsuit if they conducted any business
with Taslidzic or Titans.
¶¶39-40.
The Complaint provides specific examples of Luther’s purported misconduct:
1. [I]n early 2016, Luther falsely represented to Tnemec Company (“Tnemec”) that
Taslidzic and Titans illegally converted Prime Tech’s customers and stole Prime
Tech’s trade secrets and that Tnemec should cease doing business with Taslidzic and
Titans or risk involvement in a major lawsuit. Tnemec is a vendor headquartered in
Kansas City, Missouri. Tnemec services the United States and Canada and sells paints
and coating products utilized in many of Titans’ service contracts. ¶¶45-46.
2. In early March 2016, Luther misrepresented to Almar-Jackson Pools, Inc. (“Almar”),
that Titans and Tasldizic had stolen Prime Tech’s trade secrets and were illegally
converting Prime Tech’s current and prospective customers. Due to Luther’s
misrepresentations, Almar has not accepted any of Titans’ bids. ¶48.
3. On March 9, 2016, Luther emailed a general contractor, Valley Crest, and falsely
represented that Taslidzic was stealing Prime Tech’s clients. Luther also misleadingly
suggested that Titans and Taslidzic were being investigated for their conduct and
asked Valley Crest to forward any emails from Taslidzic regarding Titans. ¶50.
4. Also at approximately this same time, Luther falsely misrepresented to Rybovich
Boat Company, LLC (“Rybovich”) that Taslidzic and Titans were illegally converting
Prime Tech’s customers and utilizing stolen trade secrets. Prior to Luther’s
misrepresentations, Taslidzic had successfully bid on several projects with Rybovich.
After Luther’s misrepresentations, Rybovich has not accepted any of Titans’ bids,
despite Taslidzic lowering his bid prices. ¶51.
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5. In approximately June 2016, Titans successfully bid on a project for an international
energy company called Vecenergy. When Prime Tech and Luther learned of Titans’
involvement with the project, Luther falsely represented to Vecenergy that Taslidzic
and Titans illegally converted Prime Tech’s customers, stole Prime Tech’s trade
secrets and had unlawfully used that information to formulate its bid on the project.
Luther falsely represented that if Vecenergy continued to work with Titans and
Taslidzic, they, too, would be liable for conspiracy, theft of trade secrets, and other
claims. As a result of the situation, Vecenergy threatened to disqualify both Titans
and Prime Tech from making any bids on future projects. ¶¶52-53. On June 14,
2016, Luther emailed Vecenergy and falsely represented that Taslidzic and Titans
unlawfully solicited Prime Tech’s employee, Placid Edole (“Edole”), to work on the
project. In reality . . . [i]n or about May 2016, Edole resigned from Prime Tech and
asked Taslidzic for a job at Titans. ¶55-56.
According to the Complaint, Defendants have engaged in numerous other instances of
false advertising, disparaging remarks, and unfair competition and disseminated false,
slanderous, deceptive and misleading statements to customers and vendors throughout the
market. ¶57. Luther’s false and misleading statements have directly hindered Plaintiffs’ ability
to generate business and Luther’s smear campaign has tarnished Taslidzic’s reputation and
prevented him from winning projects. ¶58.
LEGAL CLAIMS
Count I alleges that Defendants have engaged in false advertising in violation of the
Lanham Act. 15 U.S.C. § 1125(a)(1)(B). In Counts II and III, Plaintiffs allege that Defendants
violated Florida common law by engaging in unfair competition and defamation per se.
In their Motion to Dismiss, Defendants contend that Plaintiffs’ claim under the Lanham
Act must fail because the Complaint does not allege (1) that Defendants advertised or promoted
their goods or services in any of the alleged communications; (2) that any unlawful speech was
sufficiently widely disseminated to constitute commercial advertising; or (3) sufficient facts to
plead a false or misleading representation of fact. DE 17 at p. 5. Defendants further argue that
Plaintiffs’ unfair competition claim fails to plead any of the requisite elements and that Plaintiffs’
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defamation claim fails to specify the identity of the person to whom Defendants’ statements were
purportedly made. Id. at pgs. 12, 14.
LEGAL STANDARDS
1. Motion to Dismiss Pursuant to Rule 12(b)(6)
A pleading in a civil action 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). To satisfy the Rule 8
pleading requirements, a complaint must provide the defendant fair notice of what the plaintiff’s
claim is and the grounds upon which it rests. See Swierkiewicz v. Sorema N.A., 534 U.S. 506,
512 (2002). While a complaint “does not need detailed factual allegations,” it must provide
“more than labels and conclusions” or “a formulaic recitation of the elements of a cause of
action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (explaining that the Rule 8(a)(2) pleading standard “demands more than an
unadorned, the defendant-unlawfully-harmed-me accusation”). Nor can a complaint 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)). The Supreme Court has emphasized that “[t]o
survive a motion to dismiss a complaint must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570);
see also Am. Dental Assoc. v. Cigna Corp., 605 F.3d 1283, 1288-90 (11th Cir. 2010).
DISCUSSION
2. False Advertising under the Lanham Act
To succeed on a false advertising claim under 15 U.S.C. § 1125(a)(1)(B), a plaintiff must
establish that (1) the advertisements of the opposing party were false or misleading; (2) the
advertisements deceived, or had the capacity to deceive, consumers; (3) the deception had a
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material effect on purchasing decisions; (4) the misrepresented product or service affects
interstate commerce; and (5) the plaintiff has been or is likely to be injured as a result of the false
advertising. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004).
To be actionable under the Lanham Act, the speech at issue must be commercial in
nature. Millenium Labs., Inc. v. Universal Oral Fluid Labs., LLC, 2012 WL 12906334, at *4
(M.D. Fla. Aug. 2, 2012). “Commercial speech encompasses not merely direct invitations to
trade, but also communications designed to advance business interests.” VG Innovations, Inc. v.
Minsurg Corp., 2011 WL 1466181 at *5 (M.D. Fla. 2011) (quoting Kleiner v. First National
Bank of Atlanta, 751 F.2d 1193, 1204, n. 22 (11th
Cir. 1985) (emphasis added). A false
statement constitutes commercial advertising or promotion where the statement is (1)
commercial speech; (2) by a defendant who is in commercial competition with the plaintiff; (3)
for the purpose of influencing consumers to buy defendant’s goods or services. VG Innovations,
Inc., 2011 WL 1466181 at *5 (citing Gordon & Breach Science Publishers, S.A. v. America
Institute of Physics, 859 F.Supp. 1521, 1535-36 (S.D.N.Y. 1994)).3
Here, Defendants argue that because the Complaint does not specifically accuse
Defendant Luther of encouraging general contractors to accept his bids instead of Plaintiffs’, he
cannot be in violation of the Lanham Act. However, the Complaint does allege that “Luther’s
remarks were . . . intended to give Prime Tech an unfair advantage in the market.” DE 1 at ¶41.
The Complaint further alleges that Luther’s “disparaging misrepresentations to customers,
prospective customers, and vendors” was intended “to manipulate them into doing business with
Defendants and ceasing all business with Titans.” Id. at ¶70.
3
See Futuristic Fences, Inc. v. Illusion Fence Corp., 558 F. Supp. 2d 1270, 1279 (S.D. Fla. 2008) (J.
Gold) (noting that although the Eleventh Circuit has not articulated a test to determine whether
misrepresentations are ‘commercial advertising or promotion’ within the meaning of the Lanham Act,
district courts in this circuit and a majority of other circuits use the test set forth in Gordon & Breach Sci.
Publishers).
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Courts have held that similar allegations of disparaging statements made against
competitors “[i]n an effort to gain more market share” are sufficient to satisfy the Lanham Act’s
commercial speech requirements at the motion to dismiss stage. See Millenium Labs., Inc. 2012
WL 12906334, at *1, 4 (allegations satisfied commercial speech where customers told that
competitor engaged in illegal business practices). Indeed, in Advisors Excel, LLC v. Scranton,
2014 WL 12543802, *4-5 (S.D. Fla. Sept. 16, 2014) (J. Middlebrooks), the complaint alleged
that defendants made disparaging statements against the plaintiff, but did not allege that
defendants promoted their own competing services. Nevertheless, the court found “it is easy to
conclude that [Defendant] Scranton’s statements were designed to advance [Defendant]
Advisors’ Academy’s business interests through influencing customers to buy Advisors’
Academy’s services, rather than Plaintiff’s.” Id. at *6. Given that Titans and Prime Tech are
direct competitors, and the allegation that at least some of the customers for which they
competed were general contractors who had previously used Prime Tech’s services, this Court
finds that the Complaint properly pleads that the disparaging statements Defendant Luther is
alleged to have made against Plaintiffs were intended to increase Prime Tech’s profits, and thus
it adequately alleges the commercial speech requirement of the Lanham Act. Particularly at this
early stage of the proceedings, where the record is relatively undeveloped, Plaintiffs have
satisfied the threshold showing necessary to defeat dismissal.4
4
Defendants’ reliance on Futuristic Fences, Inc., 558 F. Supp. 2d at 1270, is misplaced. In that case, the
communications at issue were cease and desist letters sent by defendants’ attorneys. In sua sponte
awarding judgment in favor of the defendants on the Lanham Act false advertising claim, the court found
“no evidence on summary judgment that [defendants] asked [their] attorneys to send the letter[s] for the
purpose of discouraging the recipients from buying [plaintiff’s] fence panels or to encourage the
recipients to purchase fence panels only from [defendants].” Id. at 1282. The court concluded that the
letters did not constitute commercial speech because they were not sent as a marketing and sales tool, “but
in an attempt to protect [defendants’] legal rights which [defendants] believed were being infringed.” Id.
at 1281. In contrast, the Complaint alleges that the speech at issue here came directly from Defendant
Luther in an effort to malign his direct competitor, thereby funneling more business to him.
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Defendants’ second basis for dismissing the Lanham Act claim is that the Complaint fails
to allege that Luther’s remarks were sufficiently disseminated to constitute commercial
advertising. It is well settled that while the representations at issue “need not be made in a
classical advertising campaign, [and] may consist instead of more informal types of promotion,
the representations must be disseminated sufficiently to the relevant public to constitute
advertising or promotion within that industry.” Gordon & Breach Science Publishers, 859
F.Supp. at 1535-36. “The requisite level of circulation and the relevant purchasing public will
vary according to the industry.” VG Innovations, Inc., 2011 WL 1466181 at *6.
In their motion to dismiss, Defendants argue that Plaintiffs have only cited a handful of
instances where Luther allegedly denigrated Plaintiffs’ business activities and have not
adequately identified the relevant “public.” The Complaint, however, indicates that the specific
instances cited are mere examples and that the list is not exhaustive. The Complaint also alleges
that there are “numerous other instances of false advertising, disparaging remarks, and unfair
competition and disseminated false, slanderous, deceptive and misleading statements to
customers and vendors throughout the market.” DE 1 at ¶57.
Moreover, the Complaint identifies the relevant purchasing public as the “general
contractors that are the primary customers . . . of both Titans’ and Prime Tech’s businesses,
general contractors that Taslidzic had introduced to Prime Tech, and vendors that both
companies use.” DE 1 at ¶ 38. Notably, in VG Innovations, Inc., where the complaint similarly
alleged that defendants had made false statements to plaintiff’s “distributors across the country,
to surgeons, including a particular surgeon in Louisiana, and certain of [plaintiff’s] established
doctor and hospital customers,” (id. at *6), the court held that it adequately alleged dissemination
to the relevant purchasing public. Cf. Ameritox, Ltd. v. Millennium Labs., Inc., No. 8:11-CV-
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775-T-24-TBM, 2012 WL 33155, at *3 (M.D. Fla. Jan. 6, 2012) (where the court found it
“difficult to discern whether [plaintiff] has alleged that the relevant purchasing public is
healthcare providers, patients, or both,” the court held that the complaint failed to allege
sufficient dissemination to the relevant purchasing public).
Particularly at this early stage of the case, and given the fact-specific nature of defining
the relevant public, the Court finds it would be inappropriate to require more of Plaintiffs, who
have clearly satisfied the pleading requirements of Rule 8. See Advisors Excel, LLC, 2014 WL
12543802, at *7 (court declined to apply the “harsh standard advanced by Minsurg [Intern., Inc.
v. Frontier Devices, 2011 WL 1326863 (M.D. Fla. Apr. 6, 20110)] . . . given that it would be
impossible for Plaintiff to plead facts regarding the precise identity and quantity of those who
viewed Defendants’ video without discovery”).
Defendants’ third and final argument for dismissal of the Lanham Act claim is that the
Complaint does not allege sufficient facts to plead a false or misleading representation of fact. It
is well established that factual statements are actionable under the Lanham Act, but statements of
opinion are only actionable “if they imply a false factual basis for the opinion.” Advisors Excel,
LLC, 2014 WL 12543802, at *4. “Thus, to be actionable, a statement must give consumers the
impression that it describes actual facts about the plaintiff or the activities in which plaintiff
participated.” Id. Here, Luther advised general contractors that Taslidzic had stolen customers
as well as trade secrets, and was under investigation. The Complaint repeatedly claims that these
statements are false and constitute material misrepresentations. See. e.g., DE 1 at ¶¶39, 43-45,
48, 50- 55. At this stage of the proceedings, where the Court must accept the allegations as true,
the Court finds that Luther’s alleged statements “were not mere statements of opinion, but are
statements of fact actionable under the Lanham Act.” Millenium Labs., Inc. 2012 WL 12906334,
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at *1, 4 (where movant falsely advised customers that its competitor’s business practices violated
the law, court found they were statements of fact actionable under Lanham Act).
3. Unfair Competition
In their motion, Defendants argue that the claim for unfair competition in Count II of the
Complaint should be dismissed because “under Florida common law” Plaintiffs “failed to
sufficiently plead an unfair advertising claim.” DE 17 at p. 11. Defendants then set forth the
standard for trademark infringement, which is inapplicable here.
“Under Florida common law, unfair competition is an ‘umbrella for all statutory and non-
statutory causes of action arising out of business conduct which is contrary to honest practice in
industrial or commercial matters.’” Ameritox, Ltd., 2012 WL 33155, at *4 (quoting Am. Heritage
Life Ins. Co. v. Heritage Life Ins. Co., 494 F.2d 3, 14 (5th Cir. 1974)). “For example, a party
may claim unfair competition under a variety of theories, including trademark infringement, and
tortious interference with business relations,” inter alia. Ameritox, Ltd., 2012 WL 33155, at *4
(internal citations omitted). Thus, “there is no single set of ‘elements that apply uniformly to all
claims of unfair competition.’” Ameritox, Ltd., 2012 WL 33155, at *4 (quoting Alphamed
Pharm. Corp. v. Arriva Pharm., Inc., 432 F. Supp. 2d 1319, 1353 (S.D. Fla. 2006) (J. Altonaga)).
Considering the context of the allegations raised in this Complaint, “[t]o state a claim for
unfair competition under Florida law, the Plaintiff must allege (1) deceptive or fraudulent
conduct of a competitor and (2) likelihood of consumer confusion.” Millenium Labs., Inc., 2012
WL 12906334, at *3 (citing Whitney Information Network, Inc., v. Gaqnon, 353 F. Supp. 2d
1208, 1212 (M.D. Fla. 2005)). “The Plaintiff must also allege that it competes with the
Defendant for a common pool of customers.” Millenium Labs., Inc., 2012 WL 12906334, at *3
(citing Third Party Verification, Inc. v. Siqnaturelink, Inc., 492 F. Supp. 2d 1314, 1325 (M.D.
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Fla. 2007)). Given that the Court has found that Plaintiffs have adequately alleged a cause of
action for false advertising under the Lanham Act, it also finds that Plaintiffs’ claim for unfair
competition is similarly sufficient to withstand dismissal at this stage. See Tech. Med.
Advancements, LLC v. Advanced Med. Distributors, No. 15-80194-CIV, 2015 WL 11438210, at
*4 (S.D. Fla. Oct. 2, 2015) (J. Brannon) (finding that the Lanham Act false advertising claim and
the unfair competition claim under Florida’s common law “are not qualitatively different from
each other” and so the court would address them together).
4. Defamation Per Se
Count III of the Complaint alleges that:
Luther, acting individually and as an agent of Prime Tech, published false
statements in writing and orally to multiple customers, prospective customers, and
vendors that (1) Plaintiffs illegally converted Defendants’ customers and
prospective customers, (2) Plaintiffs misappropriated Defendants’ proprietary
information and trade secrets, and (3) continued work with Plaintiffs would risk
involvement in a major lawsuit.
DE 1 at ¶79.
According to the Complaint, Defendants’ “libelous writings and slanderous statements
are defamation per se” because they “tend to subject Plaintiffs to distrust, ridicule, contempt, and
disgrace, [ ] are injurious to Plaintiffs’ trade and professional reputations, [and] Defendants knew
or should have known that the statements about Plaintiffs would cause severe damage to
Plaintiffs’ reputations [and] business opportunities . . .” Id. at ¶¶80-81.
Courts in this district have found that “[d]efamation encompasses both libel and slander”
and that “[s]lander is ordinarily confined to defamatory spoken words, whereas libel pertains to
defamatory written statements.” Klayman v. Judicial Watch, Inc., 22 F. Supp. 3d 1240, 1247, n.
2 (S.D. Fla. 2014) (J. Altonaga) (quoting Fortson v. Colangelo, 434 F. Supp. 2d 1369, 1378 n. 11
(S.D. Fla. 2006) (J. Seltzer)).
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A claim for defamation per se may proceed under a theory of libel per se or slander per se
depending on the facts of the case. In Florida, slander is actionable per se without a showing of
special damage if, inter alia, it imputes to another a criminal offense amounting to a felony, or
conduct/characteristics incompatible with the proper exercise of his lawful business, trade,
profession, or office. Klayman, 22 F. Supp. 3d at 1247 (citing Campbell v. Jacksonville Kennel
Club, Inc., 66 So.2d 495, 497 (Fla. 1953)). “To assert a viable claim for slander the Plaintiff
must allege certain facts such as the identity of the speaker, a description of the statement, and
provide a time frame within which the publication occurred.” Fowler v. Taco Viva, Inc., 646 F.
Supp. 152, 157–58 (S.D. Fla. 1986) (J. King).
Similarly, a published statement is libelous per se if, among other things, it charges that a
person has committed an infamous crime, tends to subject one to distrust, or tends to injure one
in his trade or profession. Klayman, 22 F. Supp. 3d at 1247 (quoting Richard v. Gray, 62 So.2d
597, 598 (Fla. 1953) (en banc)). “Per se defamatory statements are ‘so obviously defamatory’
and ‘damaging to [one’s] reputation’ that they ‘give[ ] rise to an absolute presumption both of
malice and damage.’” Klayman, 22 F. Supp. 3d at 1247 (quoting Wolfson v. Kirk, 273 So.2d 774,
776 (Fla. Dist. Ct. App. 1973)). “In a per se action, consideration is given only to the ‘four
corners’ of the publication and the language used should be interpreted as the ‘common mind’
would normally understand it.” Paulson v. Cosmetic Dermatology, Inc., No. CV 17-20094-CIV,
2017 WL 2484197, at *3 (S.D. Fla. June 8, 2017) (J. Scola).
At the outset, the Court rejects Defendants’ contention that the Complaint’s defamation
claim lacks the requisite level of specificity, in particular, because it does not identify the
individual to whom the statement was made. The Complaint details the content of the statements
made by Defendant Luther to particular identified contractors and the time frame when the
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statements were made. No more is required at this stage. See Ward v. Triple Canopy, Inc., No.
8:17-CV-802-T-24, 2017 WL 3149431, at *3 (M.D. Fla. July 25, 2017) (plaintiff’s claim that
defendant made defamatory statements to the Department of State and the Department of Energy
amounted to sufficient identification at the motion to dismiss stage); see also Walter v. Jet
Aviation Flight Servs., Inc., No. 9:16-CV-81238, 2016 WL 7116641, at *1 (S.D. Fla. Dec. 7,
2016) (J. Rosenberg) (finding allegation that defendant acted with malicious ill will to ruin
plaintiff’s reputation with a critical third party was sufficient to state a defamation claim;
“[p]laintiff has alleged enough factual content to raise his right to relief above a speculative
level” and gave defendant “fair notice of what the claim is and the grounds upon which it rests”).
In this case Plaintiffs are proceeding under the theory that Defendant Luther accused
them of engaging in unlawful business practices. To prevail on such a claim, the
[p]er se defamatory statements must impute conduct to plaintiffs “incompatible
with the essential functions of their respective jobs.” Where courts have found
conduct to be incompatible with one’s profession, the conduct referred to in the
defamatory statement went directly to a person’s ability to perform duties
essential to his or her employment, or was sufficiently related to skills required of
the profession.
Klayman, 22 F. Supp. 3d at 1249 (quoting Scobie v. Taylor, 2013 WL 3776270, at *3 (S.D. Fla.
July 17, 2013) (J. Scola)).
Here, the crux of Defendant Luther’s statements -- that Plaintiffs stole customers and
proprietary information -- is that Plaintiffs are untrustworthy. According to Plaintiffs, these
allegations bear directly on their credibility when presenting bids to general contractors. The
Complaint states that subcontracts are awarded in part based on the subcontractor’s reputation
and that it is critical for the general contractors to trust the bid pricing submitted in the
subcontractor’s proposal. Given that the alleged defamatory statements closely relate to the
skills and functions necessary for Plaintiffs to perform in their industry, Plaintiffs have alleged a
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prima facie claim of defamation per se. See Friedman v. Schiano, No. 16-CV-81975, 2017 WL
2901211, at *1 (S.D. Fla. Jan. 9, 2017) (J. Bloom) (court granted preliminary injunction finding
that defendants’ false statements accusing plaintiff (a competing media company) of engaging in
“fraudulent and criminal misconduct constituting illegal and immoral acts . . . constituted
defamation per se” because defendants intended to divert business away from plaintiffs).
CONCLUSION
For the foregoing reasons, this Court finds that Plaintiffs have adequately pled each cause
of action in the Complaint and, therefore, Defendants’ Motion to Dismiss (DE 17) is DENIED.
Defendants shall file their Answer to the Complaint by May 31, 2018.
DONE AND ORDERED in Chambers this 21st
day of May, 2018, at West Palm Beach
in the Southern District of Florida.
_____________________________
BRUCE REINHART
UNITED STATES MAGISTRATE JUDGE
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