UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO.: 1:20-cv-22423-UU 

SH GROUP GLOBAL IP HOLDINGS, L.L.C., 

A Delaware limited liability company, 

 Plaintiff, 

v. 

2399 COLLINS AVENUE CONDOMINIUM 

ASSOCIATION, INC., a Florida corporation, 

and JOHN P. BOSTANY, an Individual, 

 Defendants. 

DEFENDANTS’ REPLY TO OPPOSITION TO 

MOTION TO DISMISS PLAINTIFF’S COMPLAINT (DKT. #26) 

 

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INTRODUCTION 

 Six months after a condominium association sought to cancel the Plaintiff’s trademarks for 

fraud on the USPTO, Plaintiff brought this action against both the association and one of its board 

members.1 Five counts are jointly asserted against Mr. Bostany and the Association, two counts 

against only Mr. Bostany and two counts only against the Association. 

On July 20, 2020, both Defendants filed a Motion to Dismiss the Complaint. Mr. Bostany 

seeking dismissal of all counts asserted against him and the Association seeking dismissal of 

certain counts. Contemporaneously, on the same date, the Association filed an Answer as to the 

remaining claims, and included therein pro-forma answers to the claims that it had sought to 

dismiss. 

For the Court’s ease of reference, this Reply Memorandum will address the claims against 

Mr. Bostany first and will then proceed to address the claims against the Association. 

I. COUNTS I AND II, BREACH OF CONTRACT CLAIMS, FAIL TO STATE CLAIMS 

AGAINST MR. BOSTANY. 

As described in the Motion to Dismiss, this case is nothing more than a strike suit, brought 

to punish an individual board member for serving on a board that has taken action with which 

Plaintiff disagrees. Plaintiff’s response in opposition includes remarks designed to insult and attack 

counsel unnecessarily (“Defendants’ arguments misstates, or Defendants misapprehend, the 

factual allegations or Defendants’ confused assertions.”) Setting aside the baseless attacks, 

Plaintiff offers nothing to contradict the heart of the motion -- the entirety of the claims against 

Mr. Bostany are based upon Mr. Bostany allegedly voting as a member of the Board of an 

independent legal entity. The vague and non-specific allegations (Complaint, ¶¶ 44 – 55, ¶¶ 66 – 

1

 The Board of the Association consists of Michael Rock (part of management for the Hotel owner), Richard Egan 

(owner of condominium units) and John P. Bostany (owner of a condominium unit). 

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67) referred to by Plaintiff fail to state a claim upon which relief may be granted. 

The nucleus of the Plaintiff’s theory is the flawed premise that because the Association 

adopted the “1 Homes” mark in 2018, Mr. Bostany breached an individual contract that he signed 

with the Plaintiff’s alleged affiliate when he purchased his home in 2014. There is no allegation 

the Association is the alter ego of Mr. Bostany. The only allegations which identify Mr. Bostany’s 

individual actions are vague and conclusory claims that Mr. Bostany “induced, directed, and 

encouraged the Association ....” (See, Complaint ¶¶ 44, 66) Mere conclusory statements “are not 

entitled to the assumption of truth.” See, Ashcroft v. Iqbal, 556 U.S. 662, 664 (U.S. 2009). The 

factual allegations alone must state a facially plausible entitlement to relief. Id. The standard of 

facial plausibility is met “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 at 678 (citing 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (U.S. 2007); see also. Lindquist v. Jin Linxian, 2012 

WL 3811800 at *3; 2019 U.S. Dist. LEXIS 125081 (S.D. Fla. 2012). There are no allegations that 

allege how, when, or in what manner Mr. Bostany induced or directed the Association in any way 

outside his proper elected role as President of the Board of Directors.2

 

Plaintiff next suggests that it is inappropriate in a 12(b)(6) motion to consider issues of 

contract interpretation. This is true only if there is a dispute about reasonable interpretation. See, 

Managed Care Solutions, Inc. v. Cmty. Health Sys., 2011 WL 6024572, 2011 U.S. Dist. LEXIS 

(S.D. Fla. 2011). Notably, the interpretation of a contract is normally a matter of law that is 

2

 The Complaint does allege Mr. Bostany, in ¶54, personally utilized a LinkedIn page which listed him as Board 

President for “1 Homes at 1 Hotels.” This allegation is not sufficient to save the complaint. The statement found on 

LinkedIn is factually accurate and is not alleged to have been used in a manner which would result in consumer 

confusion between any products or services. The page simply describes Mr. Bostany as being Board President for the 

Association, which is located at 1 Hotel, an accurate factual statement not subject to reasonable dispute. (See also, 

Section V, supra.). Plaintiff alleges (incorrectly) that the statement is inflated as it suggests that Mr. Bostany is an 

employee of 1 Hotels. Even if that is true, such an “inflated” description is not infringement of a trademark under the 

Lanham Act and is not alleged to cause damages to Plaintiff. 

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determined by the court. Smith v. State Farm Mut. Auto. Ins. Co., 231 So. 2d 193, 194 (Fla. 1970); 

Strama v. Union Fid. Life Ins. Co., 793 So. 2d 1129, 1132 (Fla. 1st DCA 2001). “The initial 

determination of whether the contract term is ambiguous is a question of law for the court, and, if 

the facts of the case are not in dispute, the court will also be able to resolve the ambiguity as a 

matter of law.” Strama, 793 So. 2d at 1132. A contract’s “language is ambiguous only if it is 

susceptible to more than one reasonable interpretation.” Vyfvinkel v. Vyfvinkel, 135 So. 3d 384, 

385 (Fla. 5th DCA 2014) (quoting BKD Twenty-One Mgmt. Co. v. Delsordo, 127 So. 3d 527, 530 

(Fla. 4th DCA 2012)). “A true ambiguity does not exist [in a contract] merely because [the] 

contract can possibly be interpreted in more than one manner. Indeed, fanciful, inconsistent, and 

absurd interpretations of plain language are always possible.” Id. Moreover, it is well-established 

that “a provision in a contract will be construed most strongly against the party who drafted it ....” 

Sol Walker & Co. v. Seaboard C.L.R., 362 So. 2d 45, 49 (Fla. 2d DCA 1978). 

Here, the contract’s terms are not susceptible to multiple meanings. The contract drafted 

by the Plaintiff’s affiliate is very specific. Plaintiff argues that no owner (Mr. Bostany included) 

may use or adopt the “Hotel Brand” marks, which the contract allegedly specifies as “1 Hotel” or 

“1 Hotel & Residences.” (Complaint, ¶¶ 28-29; see also, discussion in Motion to Dismiss, p. 7.) 

Plaintiff attempts to import a prohibition against using the mark “1 Homes” into the contract. The 

contract does not include prohibition against using “1 Homes” nor does it restrict the use of marks 

that are similar to 1 Hotel as Plaintiff seeks to lead the Court to believe. See, State Farm Fire & 

Cas. Ins. Co. v. Deni Assocs., 678 So. 2d 397, 403 (Fla. 4th DCA 1996) (finding that “is an error 

for the court to engage in further construction of [a] defined term” as the “purpose of defining a 

contractual term is to make clear that the parties intend something in addition to the plain and 

ordinary meaning of the defined term.”). 

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Even if there were facts alleged in the Complaint which make a director individually liable 

for the Association’s adoption of “1 Homes”, there is no breach of any contract. Plaintiff is not 

permitted to use loose and vague descriptions of property in the hope that it can create some 

ambiguity to survive a Motion to Dismiss. Under Iqbal and Twombly, the Plaintiff has the burden 

to allege facts in the complaint that establish a plausible claim for relief, which includes a plausible 

claim that every element of the cause of action is satisfied. Sargeant v. Maroil Trading Inc., 2018 

WL 3031841, at *8, 2018 U.S. Dist. LEXIS 90949 (S.D. Fla. 2018). More than that, the 

Association’s actions are not Mr. Bostany’s actions and cannot be presumed to be taken by an 

individual board member as the Complaint sets forth. 

Plaintiff seeks to avoid the dictates of the State statute by arguing that in certain discreet 

situations, actions against individual directors are permitted. Plaintiff cites to several cases that 

permitted an action against an individual defendant that individually violated the Federal Fair 

Housing Statute. See, Hous. Opportunities Project for Excellence, Inc. v. Key Colony No. 4 Condo. 

Assoc., 510 F. Supp. 2d 1003, 1013 (S.D. Fla. 2007); Sabal Palm Condos. of Pine Island Ridge 

Ass’n v. Fischer, No. 12-60691-Civ., 2014 WL 988767, at *4, 2014 U.S. Dist. LEXIS 32705 (S.D. 

Fla. Mar. 13, 2014); Rosado v. Cypress at Woodmont II Condo, Ass’n, No. 10-61503-Civ., 2011 

WL 13269719, at *3, 2011 U.S. Dist. LEXIS 173227 (S.D. Fla. Jan. 6, 2011). Plaintiff further cites 

to another case that allowed a tort action against a property manager reasoning “agents such as 

property managers can be held liable when they have ‘personally committed or contributed to a 

Fair Housing Act violation.’” Fair Hous. Ctr. of the Greater Palm Beaches, Inc. v. Sonoma Bay 

Cmty. Homeowners Ass'n, Inc., 141 F. Supp. 3d 1321, 1326 (S.D. Fla. 2015). However, in this

case there is no claim of any violation of the Fair Housing Act. Instead, Plaintiff launches 

allegation of breach of contract which themselves do not implicate any federal statute. 

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Further, the Lanham Act allegations presented by Plaintiff do not set forth any alleged 

trademark violations by Mr. Bostany in his individual capacity independent from the Board’s 

activities in which Mr. Bostany voted as part of the Board. Plaintiff has not cited any case law 

which would allow a Director to be sued merely because he is voting a certain way as part of an 

organization’s board of directors. As such, the cases cited by Plaintiff are inapposite. The facts as 

set forth in the Complaint are far more aligned with the cases cited in the moving brief wherein 

votes by a Board member are challenged. 

It is well established in Florida that absent fraud, self-dealing and betrayal of trust, directors 

of condominium associations are not personally liable for the decisions they make in their capacity 

as directors of condominium associations. See, e.g., Perlow v. Goldberg, 700 So. 2d 148 (Fla. 3d 

DCA 1997) (finding directors of condominium associations not individually liable for actions and 

governance of condominium association); Taylor v. Wellington Station Condominium Ass’n, 633 

So. 2d 43 (Fla. 5th DCA 1994) (finding that in general, corporate directors and officers cannot be 

personally liable for corporate acts absent actual wrongdoing in the form of fraud, self-dealing or 

unjust enrichment to trigger individual liability); Munder v. Circle One Condominium, Inc., 596 

So. 2d 144 (Fla. 4th DCA 1992) (reversing lower court's finding of individual liability by 

condominium developer). 

II. THE FACTUAL ALLEGATIONS CONCERNING THE ASSOCIATION’S USE OF “1 

HOMES” IN COUNTS IV – VII DO NOT SUPPORT TRADEMARK CLAIMS 

AGAINST MR. BOSTANY. 

 As set forth above, the primary allegation against Mr. Bostany is that while he was a board 

member, the Association adopted the mark “1 Homes.” To establish a trademark infringement 

claim against Mr. Bostany individually, Plaintiff must allege that Mr. Bostany himself made 

unauthorized use of a mark such that there is a likelihood of consumer confusion. (Plaintiff’s 

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Opposition Brief, p. 17) Here, the allegations fail to establish any such claim. Plaintiff first alleges 

the Association adopted the mark “1 Homes.” (Complaint, ¶ 45) There is no allegation Mr. Bostany 

ever engaged in any commercial use of this mark. Next, Plaintiff alleges the Association (not Mr. 

Bostany) filed a trademark application signed by Mr. Bostany in his role as Board President. 

(Complaint, ¶¶ 46, 49) 

Not only is Mr. Bostany not personally liable for the filing of the Trademark application 

but Plaintiff offers no authority for the proposition that the act of filing a trademark application 

somehow constitutes trademark infringement. Plaintiff’s lack of authority for such a unique 

proposition is not unsurprising as the filing of a trademark application is not commercial use of a 

mark. Even if Mr. Bostany filed his own application, which he did not, this is not use in commerce 

and is not actionable. 

 Plaintiff moves on to allege that the Association has used the term “1 Homes” to identify 

itself on a website and in newsletters to the condominium owners. (Complaint, ¶¶ 50-51) There is 

no allegation Mr. Bostany created, maintained, or benefited from the website or newsletter. Even 

if all the actions were taken by Mr. Bostany individually, which they were not, this will not give 

rise to a claim for trademark infringement as Mr. Bostany has no personal commercial interest in 

products or services sold under the “1 Homes” mark and is merely a sitting Board member on a 

condominium association. In making vague and at times unintelligible allegations, Plaintiff seeks, 

in vain, to mislead the court into believing that the complained of actions of the Association were 

somehow taken without Board vote and instead taken by Mr. Bostany individually. However, the 

allegations must fail because they only allude to such a phenomenon and do not, as required, 

specify what particular acts were allegedly taken by Mr. Bostany individually. See, Fox v. Prof'l 

Wrecker Operators of Fla., Inc., 801 So. 2d 175, 181-82 (Fla. 5th DCA 2001) (dismissing claims

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against directors of a not-for-profit corporation for failing to allege sufficient facts to state causes 

of action against the directors individually). 

Plaintiff next alleges that the Association has used the mark for the sale of certain goods. 

(Complaint, ¶ 52) There is no allegation that Mr. Bostany profited from sales, directed sales or that 

any sales or use of the mark were for Mr. Bostany’s own account. The Plaintiff truly stretches for 

the next allegation, that pictures of “nature” on the website somehow supports the claims. 

(Complaint, ¶ 53) A picture of a beach scene for a Miami Beach condominium website causes 

confusion? Even if this was Mr. Bostany’s website, which it is not, there is no cognizable claim of 

trademark infringement for using a beach scene. 

 Finally, the sole specific allegation against Mr. Bostany is that he identified himself as 

“Board President for 1 Homes at 1 Hotels.” (Complaint, ¶ 54)3

 This statement is factually correct.4

Correctly identifying oneself as Board President cannot give rise to a claim for trademark 

infringement. It is undisputed that the Association conducts its business within the same building 

as 1 Hotel and stating such a fact is not actionable. Importantly, the claim does not allege that his 

listing of his position is an act of trademark infringement, only that by doing so, Mr. Bostany has 

somehow “inflated his role.” Inflation of a person’s role is not an act of trademark infringement. 

Next, Plaintiff suggests the factually accurate statements somehow imply he is employed by 

Plaintiff, a conclusion wholly unsupported by the page captured in ¶ 54, and not an act of trademark 

infringement.5

3

 The remaining paragraphs cited to by Plaintiff (¶¶83-91) are merely conclusions and have no facts asserted therein. 4

 Defendant asks the Court to take judicial notice of the Official Records of the Florida Department of State, showing 

1 Homes is registered as the fictitious name for 2399 Collins Avenue Condominiums Association, Registration No. 

G20000026298. 

5

 The placing of the logo is a function of LinkedIn, not something Mr. Bostany placed on the page. 

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III. PLAINTIFF’S ARGUMENTS ON THE TORTIOUS INTERFERENCE CLAIM 

AGAINST THE ASSOCIATION (COUNT III) IS A CIRCULAR ARGUMENT. 

 The allegations in Count III claim that the Association improperly, intentionally, and 

unjustifiably interfered in the relationship between Plaintiff and Mr. Bostany. Plaintiff alleges Mr. 

Bostany induced, directed, and encouraged the Association to breach his contract. Setting aside 

the fact there was no breach, Plaintiff then asserts the same Mr. Bostany, encouraged by himself, 

breached the agreement. (Complaint, ¶ 44) 

The Association cannot be both directed by Mr. Bostany and acting independently when 

inducing and encouraging a breach. An agent acting on behalf of a corporate party cannot be 

considered to be a separate entity for a tortious interference claim. See, Richard Bertram, Inc. v. 

Sterling Bank & Trust, 820 So. 2d 963 (Fla. 4th DCA 2002). Mr. Bostany cannot be both 

responsible for the acts of the Association for encouraging adoption of the name, and yet be 

completely independent for purposes of qualifying as a separate entity as required to bring a claim 

for tortious interference under Count III. Thus, Plaintiff cannot argue that the Association, through 

Mr. Bostany’s own actions, somehow caused a tortious interference between Mr. Bostany himself 

and Plaintiff. 

IV. WITHOUT A FLORIDA REGISTERED MARK, PLAINTIFF CANNOT BRING AN 

ACTION AGAINST EITHER DEFENDANT IN COUNT VI. 

 Plaintiff fundamentally misunderstands the statutory framework of Chapter 495, Florida 

Statutes. While a claim under Chapter 495 may look to Federal case law on trademarks to interpret 

and analyze a Florida registered trademark dispute, this does not mean the registration requirement 

of Chapter 495 is somehow optional. The clear and unequivocal language of Section 495.131(1) 

provides relief for infringement of “a mark registered under this chapter.” See, Tally-Ho, Inc. v. 

Coast Community College Dist., 889 F.2d 1018, 1024 (11th Cir. 1989) (Florida Chapter 495 

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permits a registrant to sue for infringement under section 495.131, finding an unregistered, 

common law mark cannot be enforced under this chapter) (emphasis added). 

“The Eleventh Circuit has addressed whether registration in the state of Florida is required 

in order to seek relief under the Florida Act.” Delta Sigma Theta Sorority, Inc. v. Bivins, No. 2:14-

cv-147-FtM-38CM, 2014 U.S. Dist. LEXIS 175416, at *9 (M.D. Fla. 2014) (citing Tally-Ho, 889 

F.2d at 1024). The court acknowledged that “[i]n Florida, registration under the trademark statute 

is ‘prima facie evidence of the validity of the registration, registrant’s ownership of the mark, and 

of registrant’s exclusive right to use the mark in this state in connection with the goods or services 

specified in the certificate, subject to any conditions and limitations stated therein.’” Id. (citing 

Tally-Ho, 889 F.2d at 1023). The court went on to note that the Florida Act permits a registrant to 

sue for infringement under Section 495.131, but “common law owners of unregistered marks are 

limited to common law remedies in infringement actions.” Id. (citing Tally-Ho, 889 F.2d at 1023). 

Likewise in Bivins, the court following Tally-Ho, rejected Plaintiff’s argument that a federally 

regulated mark may be enforced under Chapter 495. 

V. THE ASSOCIATION’S MOTION TO DISMISS COUNTS III AND VI IS NOT MOOT. 

Pursuant to Rule 12(b), a defense asserting Plaintiff fails to state a claim upon which relief 

may be granted “must be made before pleading if a responsive pleadings is allowed.” Here, the 

Association filed the motion before its responsive pleading, complying with the clear language of 

Rule 12(b). See, Ward v. Glen Cnty. Bd. of Comm’rs, 2016 U.S. Dist. LEXIS 106470 (S.D. Ga. 

2016). The Rule does not state that filing a subsequent responsive pleading moots the motion. The 

Eleventh Circuit has not found that filing a subsequent responsive pleading moots the motion. 

District courts have taken a variety of positions on the issue. See, ParkerVision, Inc. v. Qualcomm 

Inc., 2012 U.S. Dist. LEXIS 119545, 2012 WL 3637154 (M.D. Fla. 2012). In Brisk v. City of 

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Miami Beach, 709 F. Supp. 1146 (S.D. Fla. 1989), the primary case cited by Plaintiff, the motion 

was actually filed five (5) days after the responsive pleading and thus was converted to a Rule 

12(c) motion by the Court.6

 See also, Thornton v. City of St. Petersburg, 2012 U.S. Dist. LEXIS 

79590 (M.D. Fla. 2012) (same); but see Blitz Telecom. Consulting, LLC v. Mingo, 2011 U.S. Dist. 

LEXIS 28878 (M.D. Fla. 2011). 

Here there is no dispute that the Association filed its Motion to Dismiss before its Answer 

which was filed contemporaneously. See, Motion to Dismiss Dkt. No. 22, Answer Dkt. No 23. 

However, if the procedural argument presents any difficulty, the Association respectfully requests 

permission to amend its Answer to delete any response to Counts III and VI. Alternatively, the 

Court may in its discretion convert the Association’s Motion to Dismiss to a motion for judgment 

on the pleadings pursuant to Rule 12(c). 

CONCLUSION 

 As set forth in the Motion to Dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), all Counts against 

Mr. Bostany should be dismissed, and Counts III and VI against the Association are due to be 

dismissed. 

 Respectfully submitted this August 10, 2020. 

/s/ Brian R. Gilchrist 

Brian R. Gilchrist, FL Bar #774065 

Email: bgilchrist@allendyer.com 

ALLEN, DYER, DOPPELT + GILCHRIST, PA 

255 South Orange Avenue, Suite 1401 

Orlando, Florida 32801 

Telephone: (407) 841-2330 

Facsimile: (407) 841-2343 

6

 The Court did seem to excuse the late filing in its ruling. 

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 Stephanie Vazquez, FL Bar #1011124 

Email: svazquez@allendyer.com 

ALLEN, DYER, DOPPELT + GILCHRIST, PA 

1221 Brickell Ave., Suite 2400 

Miami, Florida 33131 

Telephone: (305) 374-8303 

Facsimile: (305) 374-8306 

Counsel for Defendants-Counterclaimants

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on August 10, 2020, I presented the foregoing to the Clerk of 

the Court for uploading to the Case Management/Electronic Case Files (“CM/ECF”) System, 

which will send a Notice of Electronic Filing to Counsel of Record: 

Gavin Cunningham Gaukroger 

Berger Singerman LLP 

350 East Las Olas Blvd., Ste 1000 

Fort Lauderdale, FL 33301 

(954) 525-9900 

Fax: (954) 523-2872 

Email: ggaukroger@bergersingerman.com

Claudia Ray 

Email: claudia.ray@kirkland.com

Dale M. Cendali 

Email: dale.cendali@kirkland.com

Shanti Sadtler Conway 

Email: shanti.conway@kirkland.com

Kirkland & Ellis LLP 

601 Lexington Avenue 

New York, NY 10022 

(212) 446-4800 

Christina Michele Perry 

Berger Singerman LLP 

1450 Brickell Avenue, Ste. 1000 

Miami, FL 33131 

305-755-9500 

Fax: 305-714-4340 

Email: cperry@bergersingerman.com 

/s/ Brian R. Gilchrist 

Brian R. Gilchrist, FL Bar #774065

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