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UNITED STATES DISTRICT COURT


MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

RENUEN CORPORATION, J.
CHARLES NEMES and DONGJOON
ALEXANDER KIM,
Plaintiffs,
v.

Case No: 6:14-cv-1754-Orl-41TBS

JOHN L. LAMEIRA, AMERICAS


GREEN ENERGY SOURCE, INC.,
AMERICAS GREEN ENERGY
CONTRACTORS, INC., CATHY J.
LERMAN, STEVEN H. LERMAN,
CATHY J. LERMAN, P.A. and DOES 150,
Defendants.
/
ORDER
THIS CAUSE is before the Court on Defendant Americas Green Energy Contractors,
Inc.s Motion to Dismiss (Doc. 65); Cathy J. Lerman P.A.s Motion to Dismiss (Doc. 66);
Americas Green Energy Source, Inc. and John L. Lameiras Motion to Dismiss (Doc. 67); Cathy
J. Lermans Motion to Dismiss (Doc. 69), and Steven H. Lermans Motion to Dismiss (Doc. 70).
For the reasons stated herein, all five motions will be granted in part.
I.
A.

BACKGROUND

Relevant Parties

Plaintiff RenuEn Corporation (RenuEn) is a Florida corporation engaged in the business


of selling and installing energy saving products and services for residential and commercial clients.
(Compl., Doc. 1, 1). Plaintiff J. Charles Nemes is the Chief Executive Officer of RenuEn, and
Plaintiff Dongjoon Alexander Kim is the Chief Legal Officer. (Id. 23).
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Defendant Americas Green Energy Source, Inc. (AGES) and Defendant Americas
Green Energy Contractors, Inc. (AGEC) are engaged in the business of marketing and selling
renewable energy and energy efficiency related products on behalf of other companies holding
professional licenses to sell and install such products. (Id. 56). Defendant John L. Lameira
controls both corporations. (Id. 4, 6). Defendant Cathy J. Lerman (C. Lerman), an attorney,
is married to Defendant Steven H. Lerman (S. Lerman), a Detective for the Coral Springs Police
Department. (Id. 78). Defendant Cathy Lerman, P.A. (the Lerman Firm) is the law firm of
Defendant C. Lerman. (Id. 9, 47).
B.

Factual Background

The pertinent facts giving rise to Plaintiffs claims occurred after AGES contracted with
RenuEn to sell RenuEns products and services. (Id. 25). On January 19, 2014, Lameira, acting
on behalf of AGES, executed a Sales and Distribution Agreement (Agreement) with RenuEn.
(Id.). However, on July 11, 2014, RenuEn terminated the Agreement after allegedly learning that
Lameira had intentions of harming RenuEn. (Id. 2630). After RenuEn terminated the
Agreement, RenuEn alleges that Lameira and AGES began to commit acts with the intent to
damage RenuEns reputation and interfere with its contractual relations. (Id. 40). RenuEn asserts
that AGES continued selling and signing customers using RenuEn contracts and documents and
openly infringed its trademarks. (Id. 3136). Lameira also allegedly encouraged AGES
employees to contact RenuEn customers, vendors, finance partners, and government departments
to disseminate false information about RenuEn and its officers. (Id. 4146).
Determined to bolster its efforts to harm RenuEns reputation, Lameira and AGES
allegedly recruited other parties to assist with their campaign to discredit Plaintiffs. (Id. 47). In
doing so, Lameira and AGES purportedly formed a group that RenuEn refers to as the Anti-

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RenuEn Group (the ARG). (Id.). Plaintiffs aver that the ARG was comprised of the following
individuals and entities: Lameira, AGES and its employees and agents, AGEC and its employees
and agents, Walter Kritsky, 1 C. Lerman, S. Lerman, the Lerman Firm, and Does 1-50. (Id. 47,
173).
Plaintiffs claim that the ARG posted a substantial amount of false and disparaging
statements about RenuEn on the internet. (Id. 47, 51111, 11319, 12447). Many of the
statements proclaimed, inter alia, that RenuEn was a Ponzi scheme, engaged in fraud, and targeted
the elderly. (See id. 51111, 11319, 12447). Although Defendants allegedly posted damaging
information about RenuEn and its officers on numerous internet websites, most of the disparaging
posts occurred on www.ripoffreport.com and C. Lermans blog and Twitter page. (Id. 140).
Plaintiffs also assert that S. Lerman caused the Coral Springs Police Department to post an
unauthorized Fraud Alert regarding RenuEn on Facebook and Twitter. (Id. 11314, 12021).
As a result of Defendants alleged tortious acts, RenuEn filed a Complaint in the United
States District Court for the Middle District of Florida seeking, inter alia, recovery for damages
caused by Defendants actions. The Complaint asserts the following claims against Defendants:
false designation of origin in violation of the Lanham Act, 15 U.S.C. 1125(a)(1)(A), against
Defendants Lameira and AGES (Count I); false advertising in violation of the Lanham Act, 15
U.S.C. 1125(a)(1)(B), against Lameira, AGES, and AGEC (Count II); civil violation of the
Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1961 et seq. (Count
III); defamation per se (Count IV); defamation (Count V); tortious interference with contractual
business relations (Count VI); violation of Floridas Deceptive and Unfair Trade Practices Act

Kritsky is a former employee of RenuEn. (Compl. 10). Plaintiffs initially named Kritsky
as a defendant to this action, but later voluntarily dismissed all claims against Kritsky with
prejudice on November 20, 2014. (Voluntary Dismissal, Doc. 39).
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(FDUPTA), Fla. Stat. 501.201 et seq. (Count VII); aiding and abetting tortious conduct, against
Does 1-50 (Count VIII) 2; and civil conspiracy (Count IX). Defendants have filed motions to
dismiss Plaintiffs claims on a variety of grounds, as further specified below.
II.

LEGAL STANDARD

A pleading that states a claim for relief 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). Pursuant to Federal
Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint for failure to state a
claim upon which relief can be granted. In determining whether to dismiss under Rule 12(b)(6),
a court accepts the factual allegations in the complaint as true and construes them in a light most
favorable to the non-moving party. See United Techs. Corp. v. Mazer, 556 F.3d 1260, 1269 (11th
Cir. 2009). Nonetheless, the tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions, and [t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). Furthermore, [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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged. Id.
III.
A.

DISCUSSION

Shotgun Pleading

The Court will not address Count VIII in this Order as it is only asserted against the
several unidentified defendants and no Defendant has moved to dismiss this claim. (Compl.
21923).
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Defendants argue that the Complaint constitutes a shotgun pleading. Shotgun pleadings
fail . . . to give the defendants adequate notice of the claims against them and the grounds upon
which each claim rests. Weiland v. Palm Beach Cty. Sheriffs Office, No. 13-14396, 2015 WL
4098270, at *5 (11th Cir. July 8, 2015). The quintessential shotgun pleading contains several
counts, each one incorporating by reference the allegations of its predecessors, leading to a
situation where most of the counts (i.e., all but the first) contain irrelevant factual allegations and
legal conclusions. Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d
1293, 1295 (11th Cir. 2002); see also Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77
F.3d 364, 366 (11th Cir. 1996) ([The plaintiffs] complaint is a perfect example of shotgun
pleading in that it is virtually impossible to know which allegations of fact are intended to support
which claim(s) for relief. (citation omitted)).
Plaintiffs Complaint is a shotgun pleading. Each count incorporates the factual allegations
of its predecessors then incorporates all of the factual allegations within the entire Complaint. (Id.
154, 162, 171, 185, 199, 208, 213, 219, 224). Therefore, the Complaint will be dismissed for
failure to comply with the applicable pleading standards. However, Plaintiffs have requested leave
to amend in the alternative. Accordingly, because leave to amend is not required when amendment
would be futile, the Court will also address Defendants substantive arguments for dismissal with
prejudice.
B.

Federal Claims
1.

Count I: False Designation of Origin

To state a claim for false designation of origin in violation of 15 U.S.C. 1125(a)(1)(A),


Plaintiffs must allege both that they had trademark rights in the mark or name at issue and that the
other party had adopted a mark or name that was the same, or confusingly similar to their mark,

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such that consumers were likely to confuse the two. Suntree Techs., Inc. v. EcoSense Intl, Inc.,
802 F. Supp. 2d 1273, 1280 (M.D. Fla. 2011) (citing Lone Star Steakhouse & Saloon, Inc. v.
Longhorn Steaks, Inc., 106 F.3d 355, 358 (11th Cir. 1997)), affd, 693 F.3d 1338 (11th Cir. 2012).
AGES and Lameira contend that Plaintiffs have failed to provide sufficient allegations supporting
their claim for false designation of origin. This argument is unpersuasive.
Plaintiffs allege that RenuEn owns the trademarks at issue. (Compl. 156). Plaintiffs
further allege that after RenuEn terminated its agreement with Lameira and AGES, AGES and
Lameira still continued using RenuEn/Energy Solution contracts in order to mislead customers
into thinking that they were signing contracts for RenuEn products and services when they were
actually contracting with a non-RenuEn entity. (Id. 3138, 157). AGES and its sales
representatives purportedly signed approximately ten to fifteen contracts with RenuEn customers
by holding themselves out as a RenuEn dealer and using RenuEns documents. (Id. 32).
Moreover, AGES allegedly displayed a RenuEn/Energy Solutions logo outside of its office door
and distributed pizza certificates to customers using RenuEns name and logo. (Id. 36). Accepting
these well-pleaded allegations as true, the Court finds that Plaintiffs have sufficiently pleaded a
claim of false designation of origin against Defendants Lameira and AGES.
2.

Count II: False Advertising

The Lanham Act further prohibits the use of false or misleading representation of fact,
which . . . in commercial advertising or promotion, misrepresents the nature, characteristics,
qualities, or geographic origin of his or her or another persons goods, services, or commercial
activities. 15 U.S.C. 1125(a)(1)(B). To state a claim for false advertising Plaintiffs must allege
that (1) the advertisements of the opposing part[ies] 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 movant[s] [have] beenor [are] likely to beinjured as a result of the
false advertising. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004).
Furthermore, the purported advertisement must constitute commercial advertising or promotion
within the meaning of 1125(a)(1)(B). In order for representations to constitute commercial
advertising, they must be: (1) commercial speech; (2) by a defendant who is in commercial
competition with plaintiff; (3) for the purpose of influencing consumers to buy defendants goods
or services; and (4) must be disseminated sufficiently to the relevant purchasing public to
constitute advertising or promotion within that industry. Gordon & Breach Sci. Publishers
S.A. v. Am. Inst. of Physics, 859 F. Supp. 1521, 153536 (S.D.N.Y. 1994); see also Suntree Techs.,
Inc., 802 F. Supp. 2d at 1286 (describing the Gordon test as the most widespread test for
determining whether a representation constitutes commercial advertising).
At the outset, to the extent Defendants argue that it is not apparent from the [C]omplaint
which of these postings constituted commercial advertising for Defendant[s], (see, e.g., AGES
Mot. Dismiss at 8), Defendants have failed to properly bring this issue before the Court. It is clear
from the Complaint which postings Plaintiffs allege constitute commercial advertising within the
meaning of the Lanham Act. If Defendants wish to challenge this designation, they must come
before the Court with more than a conclusory statement that fails to articulate either a legal or
factual basis supporting dismissal. See M.D. Fla. R. 3.01(a) (In a motion or other application for
an order, the movant shall include a concise statement of the precise relief requested, a statement
of the basis for the request, and a memorandum of legal authority in support of the request.).
Plaintiffs allege that Defendants AGEC, AGES, and Lameira are in direct competition with
RenuEn in the efficient and renewable energy industry. (Compl. 56, 39, 165). Plaintiffs further

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allege that while in direct competition with RenuEn, Lameira and AGES engaged in a campaign
of false advertising by misrepresenting the nature, characteristics, and qualities of RenuEns goods
and services. (See id. 3940, 4647). Plaintiffs also allege that the ARGwhich includes
AGEChas made numerous comments online falsely stating, inter alia, that RenuEn is a Ponzi
scheme and targets the elderly. (See id. 6269, 7999, 10110, 137 (describing the false and
disparaging statements that the ARG allegedly made regarding RenuEn and its officers)). Finally,
Plaintiffs allege that they suffered damages including but not limited to loss of sales and goodwill,
diminution in stock value, and damage to its existing and potential business relations. (Id. 168).
Based upon the allegations of the Complaint, it is reasonable to infer that Defendants
alleged statements were false, had the capacity to deceive consumers, and that they had a material
effect on purchasing decisions. Additionally, because Defendants allegedly made most of their
misrepresentations online, the Court can also reasonably infer that interstate commerce was
affected. Therefore, Defendants Motions to Dismiss fail to provide sufficient grounds for the
dismissal of Count II with prejudice.
3.

Count III: RICO

Under 18 U.S.C. 1962(c), it is unlawful for any person employed by or associated with
any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to
conduct or participate, directly or indirectly, in the conduct of such enterprises affairs through a
pattern of racketeering activity or collection of unlawful debt. Thus, to plead a claim for violation
of 1692(c), the plaintiff must allege: (1) that an enterprise existed; (2) that the enterprise affected
interstate commerce; (3) that the defendants were employed by or associated with the enterprise;
(4) that the defendants participated, either directly or indirectly, in the conduct of the enterprise;

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and (5) that the defendants participated through a pattern of racketeering activity. United States
v. Browne, 505 F.3d 1229, 1257 (11th Cir. 2007).
Plaintiffs have failed to sufficiently allege the fifth element, a pattern of racketeering
activity. 3 To successfully allege a pattern of racketeering activity, plaintiffs must charge that: (1)
the defendants committed two or more predicate acts within a ten-year time span; (2) the predicate
acts were related to one another; and (3) the predicate acts demonstrated criminal conduct of a
continuing nature. Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1264 (11th Cir. 2004)
(emphasis in original). The last element, continuity or the threat of continued criminal activity,
may refer to either a closed period of repeated conduct, or to past conduct that by its nature
projects into the future with a threat of repetition. The former period is referred to as closedended continuity, and the latter as open-ended continuity. Lockheed Martin Corp. v. Boeing
Co., 314 F. Supp. 2d 1198, 1219 (M.D. Fla. 2004) (quoting H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S.
229, 236 (1989)).
Plaintiffs allege an open-ended continuity of criminal activity. (See Compl. 173, 175).
In open-ended cases that rely on alleging the threat of continuity, plaintiffs can meet their
[pleading] burden by establishing either that the racketeering acts themselves include a specific
threat of repetition extending indefinitely into the future, or that the predicate acts or offenses are
part of an ongoing entitys regular way of doing business. Jackson, 372 F.3d at 1265 (emphasis
omitted) (quoting H.J. Inc., 492 U.S. at 242). Plaintiffs have not alleged that the specified pattern
of conduct is Defendants regular way of doing business. They make no allegations that the

The Court notes that Plaintiffs have alleged that Defendants actions constitute[] a
pattern of racketeering activity within the meaning of 18 U.S.C. 1961(5). (Compl. 181).
However, such a quotation to the language of the statute is a legal conclusion that this Court is not
obligated to accept as true. Plaintiffs have not provided sufficient factual allegations to allege the
existence of a pattern.
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purported enterprise engaged in similar conduct before or has engaged in similar conduct against
any other individual or company. See Aeropower, Ltd. v. Matherly, 511 F. Supp. 2d 1139, 1152
(M.D. Ala. 2007) (holding that a RICO complaint failed to allege open-ended continuity where
there was no indication that there [were] other incidents where the defendants . . . conducted
themselves in the same manner and [the plaintiff] . . . offered no prior examples of how this conduct
factor[ed] in with the defendants regular business practices).
The Complaint also fails to allege any threat of repetition. At the outset, Plaintiffs only
make the conclusory allegation that Defendants are engaged in ongoing activities under the
alleged RICO scheme, this is insufficient to plead the requisite continuing threat. See Kivisto v.
Miller, Canfield, Paddock & Stone, PLC, 413 F. Appx 136, 138 (11th Cir. 2011) (An open-ended
continuity cannot be shown by conclusory allegations that once begun, the alleged misconduct
threatens to continue into the future.). Furthermore, it is clear that single schemes with a specific
objective and a natural ending point can almost never present a threat of continuing racketeering
activity. Ferrell v. Durbin, 311 F. Appx 253, 257 (11th Cir. 2009). The Complaint alleges that
Defendants have conspired to ruin Plaintiffs business and reputations. Thus, the alleged RICO
enterprise consists of a single scheme with a specific objective. Additionally, there is a natural
ending point to the scheme once Defendants have accomplished their objectives of causing
RenuEn to cease operations; Defendants cannot conspire to ruin the reputation and success of a
defunct entity. See Dysart v. BankTrust, 516 F. Appx 861, 864 (11th Cir. 2013) ([The plaintiff]
failed to establish open-ended continuity because the scheme she alleged . . . cannot be repeated.);
see also Manax v. McNamara, 842 F.2d 808, 81112 (5th Cir. 1988) (holding that the plaintiff

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failed to allege continuity where the alleged association had as its purpose a single, relatively
short-lived goal: accomplishing the destruction of [the defendants] medical practice). 4
To the extent that Plaintiffs have attempted to allege closed-ended continuity, the
Complaint also fails to sufficiently allege a pattern of racketeering activity. A party alleging a
RICO violation may demonstrate continuity over a closed period by proving a series of related
predicates extending over a substantial period of time. Predicate acts extending over a few weeks
or months and threatening no future criminal conduct do not satisfy this requirement. H.J. Inc.,
492 U.S. at 242. Furthermore, in cases like this one, where the RICO allegations concern only a
single scheme with a discrete goal, the courts have refused to find a closed-ended pattern of
racketeering even when the scheme took place over longer periods of time. Jackson, 372 F.3d at
1267 (collecting cases). Thus, courts have required, at a minimum, a greater period of time and
more alleged victims in such cases. See Ferrell, 311 F. Appx at 256 (holding that a complaint did
not sufficiently allege closed-ended continuity where the alleged actions took place over roughly
a year and a half because of the scant allegations, the limited time frame, the single scheme and
the existence of only two victims); J & D Intl Trading (H.K.) Ltd. v. MTD Equip., LLC, No.
1:13-cv-2526-RWS, 2014 WL 1683375, at *11 (N.D. Ga. Apr. 28, 2014) ([T]he period [of alleged

The Manax court held that the lack of continuity negated the existence of an associationin-fact enterprise. Manax, 842 F.2d at 81112. Courts in this District have likewise stated that a
single, short-term objective goes to the existence of an association-in-fact. See Gellert v.
Richardson, No. 6:95-cv-256-Orl-19, 1995 WL 856715, at *1 (M.D. Fla. July 24, 1995). However,
the majority of cases in the Eleventh Circuit state that such allegations negate the pattern of
racketeering activity element. See, e.g., Ferrell, 311 F. Appx at 25657 (discussing continuity
requirements in terms of pleading a pattern of racketeering activity). Thus, this Court will discuss
this element in regards to the pleading requirements of a pattern. Nevertheless, to the extent
pleading an association-in-fact requires similar allegations, Plaintiffs RICO claim is insufficiently
pleaded for the reasons stated herein.
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conduct] may have to be even longer where the RICO allegations concern only a single scheme
with a discrete goal. (quotation omitted)).
Taken in the light most favorable to Plaintiffs, the charged conduct occurred between
August and October 2014. (Compl. 47, 142). Numerous courts have held that conduct lasting
less than one year is insufficient to allege closed-ended continuity, see Jackson, 372 F.3d at 1266
(collecting cases), and the Eleventh Circuit has expressly stated that cases such as this one, with
only a handful of alleged victims, a single, isolated goal, and a narrow scope of alleged
racketeering activity, nine months is insufficient to allege closed-ended continuity, id. at 1267; see
also Ferrell, 311 F. Appx at 256 (holding that conduct spanning a year and a half was insufficient
to allege closed-ended continuity where there was a single scheme and only two victims). Thus,
Plaintiffs allegations of conduct lasting only three months, constituting a single scheme with a
distinct goal, and with relatively few purported victims is insufficient to plead closed-ended
continuity. Therefore, Plaintiffs have not pleaded either open- or closed-ended continuity as
required to properly allege a pattern of racketeering activity in violation of 1692(c). Plaintiffs
RICO claim, as pleaded, fails to state a claim.
C.

State Law Claims


1.

Counts IV and V: Defamation Per Se and Defamation

From what the Court can discern, Defendants argue that Plaintiffs defamation claims
should be dismissed because: (1) Plaintiffs cannot prove their claims for defamation 5; (2) Plaintiffs

The Court rejects Defendants arguments that their alleged statements are non-actionable
as truthful, and that Plaintiffs will not be able to prove their claims. These are improper arguments
at this stage in the proceedings. At the motion to dismiss stage, the Court must accept all wellpleaded facts as true. Iqbal, 556 U.S. at 664. Plaintiffs specifically allege that Defendants
defamatory statements are false. Thus, the veracity of Defendants alleged statements and
Plaintiffs ability to prove this claim, are matters best resolved at the summary judgment stage or
at trial.
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fail to sufficiently allege the requisite elements of their claim; (3) Defendants alleged statements
were protected under the First Amendment as pure opinion; and (4) Plaintiffs fail to allege actual
malice. In addition to these arguments, S. Lerman contends that Plaintiffs defamation claims are
barred by the absolute privilege doctrine, while C. Lerman and the Lerman Firm maintain that
Plaintiffs have failed to comply with Floridas pre-suit notice requirements.
Pre-suit Notice under Fla. Stat. 770.01
C. Lerman and the Lerman Firm argue that Plaintiffs claims for defamation must be
dismissed because C. Lerman and the Lerman Firm constitute media defendants by virtue of the
Lerman Firms blog, but Plaintiffs failed to provide them with pre-suit notice pursuant to Fla.
Stat. 770.01. Section 770.01 provides: Before any civil action is brought for publication . . . in
a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall . . . serve notice
in writing on the defendant, specifying the article or broadcast and the statements therein which
he or she alleges to be false and defamatory. Florida courts have interpreted section 770.01 to
apply only to media defendants. Intihar v. Citizens Info. Assocs., LLC, No. 2:13-cv-720-FtM29CM, 2014 WL 842464, at *4 (M.D. Fla. Mar. 4, 2014). While Florida courts have determined
that a blogger may constitute a media defendant, the mere title of blogger does not automatically
render an individual a media defendant. The Court must consider the individual circumstances.
See Comins v. Vanvoorhis, 135 So. 3d 545, 559 (Fla. 5th DCA 2014).
In determining whether a defendant constitutes a media defendant, Florida courts consider
whether the defendant engages in the traditional function of the news media, which is to initiate
uninhibited, robust, and wide-open debate on public issues. Ortega Trujillo v. Banco Cent. Del
Ecuador, 17 F. Supp. 2d 1334, 1338 (S.D. Fla. 1998) (quoting Gertz v. Robert Welch, Inc., 418
U.S. 323, 340 (1974)). Thus, media defendants are not just those who impartially disseminate

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information, or issue unsolicited, disinterested and neutral commentary as to matters of public


interest. The term also applies to those who editorialize as to matters of public interest without
being commissioned to do so by [their] clients. Tobinick v. Novella, No. 9:14-cv-80781, 2015
WL 1191267, at *8 (S.D. Fla. Mar. 16, 2015) (quoting Ortega Trujillo, 17 F. Supp. 2d at 1338).
Neither C. Lerman nor the Lerman Firm constitute a media defendant within the meaning
of section 770.01. Although it cannot be denied that Defendants used the blog to disseminate
information, they did so primarily for purposes of financial gain and advertisement, not for the
purpose of the free dissemination of information. Unlike the defendant in Comins, Defendants are
not disinterested, neutral persons commenting on matters of public concern. Rather, Defendants
have actively used the information they are disseminating about Plaintiffs to solicit potential
clients. (See, e.g., Aug. 15, 2014 Blog Post, Ex. 4 to Compl., Doc. 1-1, at 6; Sept. 19. 2014 Blog
Post, Ex. 29 to Compl., Doc. 1-5, at 24). Thus, Defendants are more akin to the public-relations
firm defendant in Ortega Trujillo because they are acting out of financial interest and not in the
interest of providing impartial commentary on matters of public concern. Rather, the editorial
content provided by Defendants is, in a large sense, commissioned by those willing to pay their
fees to prosecute the alleged fraudsters. See also Tobinick, 2015 WL 1191267, at *6, 89
(distinguishing Ortega Trujillo because defendant was a not-for-profit corporation with
educational goals, its comments were not commissioned, and its blog did not advertise the
defendants products). Therefore, C. Lerman and the Lerman Firm are not media defendants and
are not entitled to pre-suit notice pursuant to section 770.01.
The First Amendment
Defendants allege that the charged statements are opinion or hyperbole and do not,
therefore, constitute actionable defamation pursuant to the First Amendment. It is well established

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that a pure expression of opinion is constitutionally protected. Colodny v. Iverson, Yoakum,


Papiano & Hatch, 936 F. Supp. 917, 923 (M.D. Fla. 1996) (quotation omitted). Thus, if the
communication at issue constitutes a pure expression of opinion, it is protected by the First
Amendment and cannot be the basis of a defamation claim. Morse v. Ripken, 707 So. 2d 921, 922
(Fla. 4th DCA 1998). However, if the statement is a mixed expression of fact and opinion or a pure
expression of fact, it is not protected. Id. [W]hether the alleged defamatory word is a[] nonactionable expression of pure opinion or an actionable expression of pure fact or mixed opinion
and fact is a question of law for the Court. Colodny, 936 F. Supp. at 923.
At the outset, Defendants have pointed this Court to no allegations in the Complaint which
would not constitute pure expressions of fact. The passing statement that the statements made by
Defendant would be privileged, statements of opinion, and/or rhetorical hyperbole, (see, e.g.,
AGEC Mot. to Dismiss at 14), without citation to either the Complaint or to legal authority is not
sufficient to properly bring this issue before the Court. In any event, Plaintiffs have alleged that
Defendants made at least some pure statements of fact. Therefore, Plaintiffs have alleged
defamatory statements that are not subject to First Amendment protection.
Actual Malice or Negligence
To state a cause of action for defamation under Florida law, a plaintiff must allege: (1)
publication; (2) falsity; (3) actor must act with knowledge or reckless disregard as to the falsity on
a matter concerning a public official, or at least negligently on a matter concerning a private
person; (4) actual damages; and (5) statement must be defamatory. Jews For Jesus, Inc. v. Rapp,
997 So. 2d 1098, 1106 (Fla. 2008). Defamation per se occurs when a communication imputes to
another . . . a criminal offense amounting to a felony . . . [or] conduct, characteristics, or a condition
incompatible with the proper exercise of his lawful business, trade, profession, or office.

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Campbell v. Jacksonville Kennel Club, 66 So. 2d 495, 497 (Fla. 1953). Defamation per se requires
proof of all the elements of a defamation claim except damages, which are presumed. See Leavitt
v. Cole, 291 F. Supp. 2d 1338, 1342 (M.D. Fla. 2003); Hood v. Connors, 419 So. 2d 742, 743 (Fla.
5th DCA 1982). 6 Defendants do not challenge publication or damages, or that the specified
statements are defamatory, but Defendants do contend that Plaintiffs have failed to plead the
requisite culpability. Defendants also challenge the falsity of the statements; however, Plaintiffs
have alleged that the statements are false and that is adequate at the motion to dismiss stage.
Defendants contend that Plaintiffs are public figures and must, therefore, allege actual
malice in order to state a claim for defamation. Plaintiffs, conversely, argue that they are not public
figures and must only allege negligence as to the truth or falsity of Defendants statements.
However, the Court declines to determine if Plaintiffs are private or public figures at this time
because the allegations of the Complaint are sufficient to allege actual malice as to Lamiera,
AGES, AGEC, C. Lerman, and the Lerman Firm. Additionally, the allegations of the Complaint
are insufficient to allege even negligence as to S. Lerman.
To show actual malice a plaintiff must establish by clear and convincing evidence that
the speaker made the statement with knowledge that it was false or with reckless disregard of
whether it was false or not. Dunn v. Air Line Pilots Assn, 193 F.3d 1185, 1192 (11th Cir. 1999)
(quoting Old Dominion Branch No. 496, Natl Assn of Letter Carriers, AFL-CIO v. Austin, 418
U.S. 264, 281 (1974)). Because actual malice is a matter of proof, allegations of knowledge of
falsity or a reckless disregard for the statements falsity is sufficient at [the motion to dismiss]

For purposes of the Motions to Dismiss presently before the Court, the distinction
between defamation and defamation per se is inconsequential. Defendants have not challenged
Plaintiffs actual damages allegations and therefore the two claims may be considered together for
purposes of this Order.
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stage in the litigation. No Witness, LLC v. Cumulus Media Partners, LLC, No. 1:06-cv-1733 JEC,
2007 WL 4139399, at *8 (N.D. Ga. Nov. 13, 2007).
The allegations, taken in the light most favorable to Plaintiffs, allege actual knowledge of
falsity or reckless disregard as to Defendants Lamiera, AGES, AGEC, C. Lerman, and the Lerman
Firm. Plaintiffs have alleged that the forenamed Defendants intentionally fabricated and published
false information regarding Plaintiffs in order to harm Plaintiffs business and reputations. (See,
e.g., Compl. 58, 60, 6263, 69, 81). This is sufficient to allege knowledge of falsehood as the
Complaint is alleging that Defendants fabricated the subject statements. Furthermore, Plaintiffs
have pleaded that C. Lerman was, at the least, guilty of reckless disregard as to the veracity of the
statements. On August 18, 2014, Plaintiff Kim allegedly e-mailed C. Lerman in an attempt to
cooperate with the investigation into Plaintiffs. (Id. 56). However, C. Lerman responded that she
was not interested in [Plaintiffs] information. (Id. (quotation omitted)). This is adequate to plead
at least reckless disregard on the part of C. Lerman.
As to S. Lerman, Plaintiffs have failed to make any specific allegations as to his level of
culpability for publishing the specified statements. Florida law requires at least a showing of
negligence on the part of the defendant in order to be held liable for defamation. Miami Herald
Publg Co. v. Ane, 423 So. 2d 376, 378 (Fla. 3d DCA 1982) (noting that under Florida law, a nonpublic figure must only establish that the defendant published the alleged false and defamatory
statements with negligence), affd, 458 So. 2d 239 (Fla. 1984). Negligence, for the purpose of
defamation law, means the defendant acted without reasonable care as to whether th[e] statements
were true or false. Id. at 388. Here, Plaintiffs only allege that S. Lerman caused a purportedly
defamatory statement to be posted on Facebook and Twitter. (Compl. 11314). Plaintiffs do
not, however, make any allegations as to S. Lermans conduct in regards to the truth or falsity of

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the statements. Plaintiffs have not pleaded that S. Lerman was aware that the information was
false, that he was reckless in this regard, or that he failed to conduct an investigation into the
veracity of his statements. To the extent that Plaintiffs argue that they alleged all Defendants acted
with actual malice, (id. 193, 203), this is a legal conclusion and insufficient to overcome a
motion to dismiss. Accordingly, Plaintiffs have alleged neither actual malice nor negligence with
respect to S. Lerman. 7
2.

Count VI: Tortious Interference with Contractual Business Relations

A claim for tortious interference with a business relationship requires (1) the existence of
a business relationship[;] (2) knowledge of the relationship on the part of the defendant; (3) an
intentional and unjustified interference with the relationship by the defendant; and (4) damage to
the plaintiff as a result of the breach of the relationship. Gossard v. Adia Servs., Inc., 723 So. 2d
182, 184 (Fla. 1998) (quotation omitted).
Defendants, with the exception of S. Lerman, do not argue that the Complaint lacks
sufficient allegations supporting a claim for tortious interference, rather, they argue that Plaintiffs
cannot prove their claim because RenuEns contracts were illegal and fraudulently induced and,
therefore, are void. As an initial matter, this argument is improper at the motion to dismiss stage
because the Court is limited to assessing the sufficiency of the allegations within the four corners
of the Complaint. Furthermore, this argument is meritless as Florida courts have expressly
recognized that a claim for tortious interference can be maintained even though [the] business
relationship is based on a contract which is void and unenforceable. Ethan Allen, Inc. v.

The Complaint fails to sufficiently plead either defamation or defamation per se against
Defendant S. Lerman. Therefore, the Court need not address S. Lermans absolute immunity
defense at this time.
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Georgetown Manor, Inc., 647 So. 2d 812, 815 (Fla. 1994) (citing United Yacht Brokers, Inc. v.
Gillespie, 377 So. 2d 668, 672 (Fla. 1979)).
S. Lerman argues that the Complaint is devoid of any fact-based allegations that there
existed any business relationship with any contractor or customer that was terminated or destroyed,
or any fact-based allegation that any such particular business relationship was known to [S.
Lerman]. (S. Lerman Mot. to Dismiss at 10). Plaintiffs have sufficiently alleged that Defendants,
including S. Lerman, had knowledge of existing and prospective business relations between
RenuEn and its customers. (See, e.g., Compl. 33, 38, 52, 71, 153). However, [e]ither a breach
or termination of a business relationship is necessary to establish interference. Martinez v.
Pavex Corp., 422 F. Supp. 2d 1284, 1297 (M.D. Fla. 2006); see also Anthony Distributors, Inc. v.
Miller Brewing Co., 941 F. Supp. 1567, 1572 (M.D. Fla. 1996) ([B]ased on a review of relevant
case law, . . . this Court holds that either breach or termination of a business relationship or
expectancy is necessary to establish interference.). Plaintiffs have not specifically pleaded the
breach or termination or an existing or expected business relationship. Thus, as currently pleaded,
the Complaint fails to state a claim for tortious interference with a business relationship against
any Defendant.
3.

Count VII: FDUTPA

AGEC, AGES, and Lameira 8 contend that the Complaint does not contain sufficient factual
allegations to state a claim under FDUTPA. To state an FDUTPA claim, [the plaintiff] must allege

Only Defendants AGEC, AGES, and Lameira challenge the FDUTPA claim. In their
response, Plaintiffs do not argue that the remaining Defendants were intended to be addressed in
Count VII. Accordingly, the Court will consider only those arguments before it and will not
address Count VII as to Defendants C. Lerman, S. Lerman, or the Lerman Firm. To the extent
Plaintiffs intended to allege FDUTPA violations against one or all of these Defendants, they must
do so with specificity. Generalized use of the term Defendants only adds to the confusion created
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(1) a deceptive act or unfair trade practice; (2) causation; and (3) actual damages. Dolphin LLC
v. WCI Cmtys., Inc., 715 F.3d 1243, 1250 (11th Cir. 2013) (citing Rollins, Inc. v. Butland, 951 So.
2d 860, 869 (Fla. 2d DCA 2006)). Plaintiffs FDUPTA claim essentially relies on the same
allegations supporting Plaintiffs claims for trademark infringement and defamation. See Nat.
Answers, Inc. v. SmithKline Beecham Corp., 529 F.3d 1325, 1333 (11th Cir. 2008) ([The
plaintiffs] claim for a violation of [FDUTPA] rises or falls on the success of [the plaintiffs]
trademark infringement and false advertising claims.); Army Aviation Heritage Found. &
Museum, Inc. v. Buis, 504 F. Supp. 2d 1254, 126263 (N.D. Fla. 2007) (noting that statements
found to be defamatory [may] also constitute[] violations of FDUTPA where the defamatory
statement relates to business matters). Plaintiffs have pleaded claims for trademark infringement
and defamation related to business practices against AGEC, AGES, and Lameira. Therefore,
AGECs, AGESs, and Lameiras motions to dismiss Plaintiffs FDUTPA claim with prejudice
will be denied.
4.

Count IX: Civil Conspiracy

Under Florida law, a civil conspiracy requires: (a) an agreement between two or more
parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some
overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts done
under the conspiracy. Fuller v. Mortg. Elec. Registration Sys., Inc., 888 F. Supp. 2d 1257, 1273
(M.D. Fla. 2012) (quoting Eagletech Commcns, Inc. v. Bryn Mawr Inv. Grp., Inc., 79 So. 3d 855,
863 (Fla. 4th DCA 2012)). General allegations of conspiracy are inadequate. A complaint must
set forth clear, positive, and specific allegations of civil conspiracy. Id. (quotation omitted).

by Plaintiffs shotgun approach to pleading. The Complaint should clearly and specifically indicate
each Defendant being charged with liability under each count of the Complaint.
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Plaintiffs have failed to state a claim for civil conspiracy. Under Florida law, [i]t is not to
be presumed that a mere conspiracy per se has resulted in civil damages; therefore, that fact must
be pleaded in the complaint in order to make a good cause of action against motion. Bond v.
Koscot Interplanetary, Inc., 246 So. 2d 631, 635 (Fla. 4th DCA1971) (quotation omitted); see also
Catlett v. Chestnut, 146 So. 547, 479 (Fla. 1933) ([T]he character and extent of the private injury
resulting from the alleged conspiracy must be pleaded by the complaining party . . . . It is not to
be presumed that a mere conspiracy per se has resulted in civil damages.). Plaintiffs have not
alleged any damages arising from the alleged conspiracy. Therefore, Plaintiffs civil conspiracy
allegations fail to state a claim upon which relief can be granted. 9
IV.

CONCLUSION

In accordance with the foregoing, it is hereby ORDERED and ADJUDGED as follows:


1. Defendant Americas Green Energy Contractors, Inc.s Motion to Dismiss (Doc.
65); Cathy J. Lerman P.A.s Motion to Dismiss (Doc. 66); Americas Green Energy
Source, Inc. and John L. Lameiras Motion to Dismiss (Doc. 67); Cathy J. Lermans
Motion to Dismiss (Doc. 69), and Steven H. Lermans Motion to Dismiss (Doc. 70)
are GRANTED in part.
2. The Complaint (Doc. 1) is DISMISSED without prejudice.
3. Plaintiffs may file an amended complaint, in accordance with this Order, on or
before Monday, August 17, 2015. Failure to do so will result in the dismissal of

S. Lerman argues that Plaintiffs state law claims are barred by sovereign immunity under
Fla. Stat. 768.28(9)(a), which provides an officer with immunity for any actions taken in the
course of his or her employment unless such officer acted in bad faith or with malicious purpose.
However, Plaintiffs have failed to state a claim against S. Lerman, and therefore, the Court declines
to address his qualified immunity defense at this time. Defendant may renew this claim if
appropriate in the future.
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Counts III, VI, and IX and all claims against Defendant S. Lerman with prejudice
and without further notice.
DONE and ORDERED in Orlando, Florida on August 3, 2015.

Copies furnished to:


Counsel of Record

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