United States District Court

for the

Southern District of Florida

Scanz Technologies, Inc., Plaintiff,

v.

JewMon Enterprises, LLC and 

others, Defendants.

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Civil Action No. 20-22957-Civ-Scola

Omnibus Order

This matter is before the Court upon Timothy Bohen’s (ECF No. 39); 

Stockstotrade.com Inc and Zachary Westphal’s (ECF No. 40); and JewMon

Enterprises, LLC, Timothy Sykes, Millionaire Publishing, LLC (a Florida limited 

liability corporation), Million Publishing, LLC (a Colorado limited liability 

corporation), and Millionaire Media, LLC’s (ECF No. 41) motions to dismiss. 

Additionally before the Court is the Defendants’ joint request for the Court to 

take judicial notice of ten tweets from the twitter account @GetScanz (ECF No. 

42) and the Plaintiff’s request for the Court to take judicial notice of certain 

YouTube videos and various other materials (ECF No. 46) filed in connection 

with the parties’ motion to dismiss briefing.

1. Background

The Plaintiff, Scanz Technologies, Inc. (“Scanz”) has brought suit against 

the Defendants for alleged theft of its trade secrets. Scanz is a Canadian 

corporation that develops and sells “scanning technology used by traders and 

other similar constituents of the securities industry involving the public capital 

markets.” (ECF No. 1, at ¶ 3.) The Plaintiff alleges that the Defendants 

“engaged in a civil conspiracy . . . to conduct their business enterprises using” 

Scanz’s trade secrets “which they illegally stole from Scanz.” (ECF No. 1, at ¶ 

13.) In support of their allegations as to conspiracy, Scanz asserts that 

Defendants Sykes and Westphal are the members of JewMon Enterprises, LLC, 

a Florida corporation, and further state that Defendants JewMon, Millionaire 

Publishing, Millionaire Media, and Stockstotrade.com “were each the alter ego” 

of Sykes. (ECF No. 1, at ¶¶ 4-6.) Moreover, the Plaintiff states that Timothy 

Bohen was an “agent in fact” for the Defendants, and further states that Sykes, 

with the assistance of Westphal and Bohen was able to “perpetuate the fraud of 

a separate existence for each of the entities by disregarding their separateness 

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and otherwise commingling and confusing their assets, properties and 

business affairs.” (ECF No. 1, at ¶¶ 7, 14.) 

Scanz became involved with Sykes and JewMon towards the end of 2012

when Scanz was contacted by Sykes on behalf of JewMon, seeking “white label” 

licensure of Scanz’s programs “for use in connection with JewMon’s alleged 

business model of promoting and selling to the general public various 

strategies for becoming successful traders in the OTC micro-cap and penny 

stock marketplaces.” (ECF No. 1, at ¶ 25.) In 2013, Scanz and JewMon entered 

into a licensing agreement pursuant to which Scanz would provide JewMon

with a “worldwide, non-transferable, non-assignable, non-exclusive license to 

use” Scanz’s programs so JewMon could offer its clients a desktop market 

analysis platform via one of its websites, Stockstotrade.com. (ECF No. 1, at ¶ 

26.) 

As part of the agreement between Scanz and JewMon, Scanz would 

provide billing and support services to JewMon and JewMon would receive 30% 

of all subscription-based revenues that arose from the licensing agreement,

with the remainder of the revenues going to Scanz. (ECF No. 1, at ¶ 27.) The 

licensing agreement prohibited JewMon from copying the “look and feel” of 

Scanz’s programs and prohibited JewMon from attempting to “reverse engineer, 

decompile, disassemble, or otherwise reduce to human-perceivable form” 

Scanz’s program. (ECF No. 1, at ¶ 28.) Scanz asserts that these prohibitions on 

JewMon’s use of Scanz’s trade secrets survived termination of the licensing 

agreement. (ECF No. 1, at ¶¶ 28-29.) 

In April 2015, Scanz and JewMon terminated the licensing agreement via 

a two-page Termination Notice. (ECF No. 1, at ¶ 30; see also ECF No. 1-1.) The 

Plaintiff asserts that notwithstanding termination of the licensing agreement, 

JewMon “remained bound in perpetuity” with respect to its obligations to, 

among certain other obligations set forth in the Plaintiff’s complaint, (1) keep 

confidential any and all designated non-public information obtained from 

Scanz under the agreement; (2) cease and desist use of Scanz’s programs and 

trade secrets; (3) refrain from asserting it had rights of any kind to Scanz’s 

trade secrets; and (4) refrain from using, copying the “look and feel”, or 

attempting to reverse engineer Scanz’s program or other Scanz’s trade secrets. 

(ECF No. 1, at ¶ 30.) 

After a period of initial compliance, Scanz asserts that beginning in 

December 2016, Scanz began to suspect that Sykes may have started to deploy 

a product similar to Scanz’s product and began an investigation into Sykes’s 

program to see if it violated any of the parties’ agreements. (ECF No. 1, at ¶ 33.) 

By August 2017, Scanz determined that Sykes’s program contained “not only 

similar functionality” as Scanz’s program and trade secret protected 

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information, “but actually contain[ed] virtually identical functionality” as 

Scanz’s program. (ECF No. 1, at ¶ 34.) Scanz continued its investigation of 

Sykes’s program and asserts that by May 2018, Scanz determined that Sykes’s 

program “not only had progressed to an imitation of Scanz’s product offering 

but that Sykes’s platform had progressed to containing a virtually identical 

‘look and feel’ as compared to the most important core features” of Scanz’s 

program. (ECF No. 1, at ¶ 36.) Accordingly, Scanz asserts that Sykes’s program 

was stolen from Scanz in violation of the parties’ agreements and that Sykes 

and his co-Defendants are now profiting off of Scanz’s trade secrets. 

2. Legal Standard

When considering a motion to dismiss under Federal Rule 12(b)(6), the 

Court must accept all of the complaint’s allegations as true, construing them in 

the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 

1284 (11th Cir. 2008). Under Federal Rule 8, a pleading need only contain “a 

short and plain statement of the claim showing that the pleader is entitled to 

relief.” Fed. R. Civ. P. 8(a)(2). The plaintiff must nevertheless articulate “enough 

facts to state a claim to relief that is plausible on its face.” 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.” Ashcroft v. 

Iqbal, 129 S. Ct. 1937, 1949 (2009). “Threadbare recitals of the elements of a 

cause of action, supported by mere conclusory statements, do not suffice.” Id.

Thus, a pleading that offers mere “labels and conclusions” or “a formulaic 

recitation of the elements of a cause of action” will not survive dismissal. Id.

In applying the Supreme Court’s directives in Twombly and Iqbal, the 

Eleventh Circuit has provided the following guidance to the district courts:

In considering a motion to dismiss, a court should 1) eliminate any 

allegations in the complaint that are merely legal conclusions; and 

2) where there are well-pleaded factual allegations, assume their 

veracity and then determine whether they plausibly give rise to an 

entitlement to relief. Further, courts may infer from the factual 

allegations in the complaint obvious alternative explanation[s], 

which suggest lawful conduct rather than the unlawful conduct 

the plaintiff would ask the court to infer.

Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F. App’x 136, 138 (11th 

Cir. 2011) (citations omitted). “This is a stricter standard than the Supreme 

Court described in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), which held 

that a complaint should not be dismissed for failure to state a claim ‘unless it 

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appears beyond doubt that the plaintiff can prove no set of facts in support of 

his claim which would entitle him to relief.’” Mukamal v. Bakes, 378 F. App’x 

890, 896 (11th Cir. 2010). These precepts apply to all civil actions, regardless 

of the cause of action alleged. Kivisto, 413 F. App’x at 138

3. Analysis

A. Personal Jurisdiction Over Timothy Bohen

The Court turns first to Defendant Timothy Bohen’s argument that the 

Court must dismiss the claims against him as the Court lacks either general or 

specific personal jurisdiction over him. The Court notes that both Bohen and 

the Plaintiff, Scanz, provided affidavits and other materials relating to the 

Court’s exercise of personal jurisdiction over Bohen. Where a plaintiff meets its 

initial burden to make out a prima facie case for a court’s exercise of personal 

jurisdiction over a defendant by providing sufficient evidence in the complaint 

to withstand a motion for to dismiss, courts may then consider affidavits, 

documents, or other testimony provided by the defendant challenging the 

allegations supporting personal jurisdiction. Stubbs v. Wyndham Nassau Resort 

and Crystal Palace Casino, 447 F.3d 1357, 1360 (11th Cir. 2006); see also

Internet Solutions Corp. v. Marshall, 557 F.3d 1293, 1295 (11th Cir. 2009). 

Should a defendant provide such material, the burden then shifts back to the

plaintiff to produce evidence supporting personal jurisdiction. Stubbs, 447 F.3d 

at 1360. All reasonable inferences must be construed in favor of the 

plaintiff. Id. Before courts may consider materials provided by a defendant and 

plaintiff the court must first decide if the plaintiff has made out a prima facie 

case supporting the court’s exercise of personal jurisdiction.

To determine whether a party has adequately alleged personal 

jurisdiction over a foreign defendant, the Court first asks whether there is 

jurisdiction under Florida’s long-arm statute and next determines whether the 

exercise of jurisdiction comports with the Due Process Clause of the 

Fourteenth Amendment. Waite v. All Acquisition Corp., 901 F.3d 1307, 1312 

(11th Cir. 2018). Florida’s long-arm statute provides two means for subjecting 

a foreign defendant to the jurisdiction of Florida courts: 1) “a defendant is 

subject to specific personal jurisdiction—that is, jurisdiction over suits that 

arise out of or related to a defendant’s contacts with Florida—for conduct 

specifically enumerated in the statute”; and 2) “a defendant is subject to 

general personal jurisdiction—that is, jurisdiction over any claims against a 

defendant, whether or not they involve the defendant’s activities in Florida—if 

the defendant engages in substantial and not isolated activity in Florida.” Id. 

(internal quotations omitted) (emphasis in original) (discussing Fla. Stat. § 

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48.193). Under either form of personal jurisdiction, the defendant must have 

“‘certain minimum contacts with [the state] such that the maintenance of the 

suit does not offend traditional notions of fair play and substantial justice.’” Id. 

(citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). The inquiry 

focuses on the defendant’s contacts with the state, and not the “random, 

fortuitous, or attenuated” contacts it has by interacting with other persons 

affiliated with the state. Walden v. Fiore, 571 U.S. 277, 284 (2014). 

(1) General Personal Jurisdiction

Under Florida’s long-arm statute, general jurisdiction “extends to the 

limits on personal jurisdiction imposed by the Due Process Clause of the 

Fourteenth Amendment.” Fraser v. Smith, 594 F.3d 842, 846 (11th Cir. 2010) 

(discussing Florida law). Thus, determining whether general personal 

jurisdiction is proper in Florida requires a one-step inquiry which requires 

courts to determine whether the exercise of jurisdiction over a defendant would 

exceed constitutional bounds. Id. An individual is subject to general 

jurisdiction where the individual is domiciled. Daimler AG v. Bauman, 571 U.S. 

117, 137 (2014). Here, both the Plaintiff and the Defendant Bohen agree that 

Bohen is not a Florida resident.1 Accordingly, the Court finds that Bohen is not 

subject to the Court’s general personal jurisdiction.

(2) Specific Personal Jurisdiction

As the Court does not have general personal jurisdiction over the 

Defendant Bohen, the Court must determine if the Plaintiff has prima facie 

plead that the Court has specific personal jurisdiction over Bohen. The Plaintiff 

argues that the Court can exercise specific personal jurisdiction over the 

Defendant Bohen because he was engaged in a conspiracy with Sykes and 

Westphal to steal and profit from Scanz’s trade secret protected information. 

(ECF No. 45, at 3.) “Florida courts have held that the state’s long-arm statute 

can support personal jurisdiction over any alleged conspirator where any other 

co-conspirator commits an act in Florida in furtherance of the conspiracy, even 

if the defendant over whom personal jurisdiction is sought individually 

committed no act in, or had no relevant contact with, Florida.” United Techs., 

Corp. v. Mazer, 556 F.3d 1260, 1281-82 (11th Cir. 2009).

1 While the complaint states that Bohen is a resident of Minnesota (ECF No. 1, at ¶ 7), 

Bohen states in his motion to dismiss that he is a resident of Michigan (ECF No. 39, at 

2). The Plaintiff states that they “take at face value Bohen’s statements that his 

residence is actually nearby in the state of Michigan.” (ECF No. 45, at 3 n.4.) Regardless 

of whether the Defendant Bohen resides in Minnesota or Michigan, it is clear the parties 

agree that Bohen does not reside in Florida. 

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To state a claim for civil conspiracy, a plaintiff must allege “(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 over act in pursuance of 

the conspiracy, and (d) damage to plaintiff as a result of the acts done under 

the conspiracy.” Paulson v. Cosmetic Dermatology, Inc., No. 17-20094-Civ, 2017 

WL 248197, at *5 (June 8, 2017) (Scola, J.) (internal citations omitted). 

Moreover, Florida law does not recognize an independent cause of action for 

civil conspiracy, but rather, a plaintiff must allege an underlying illegal act or 

tort on which the conspiracy is based. Id.

Upon review of the complaint, the Court finds that the Plaintiff has failed 

to allege that there was any agreement between Bohen and Sykes or Westphal 

to steal and profit from Scanz’s trade secrets. Instead, the complaint makes 

conclusory references to all Defendants and generically states that they “acted 

conspiratorially . . . by engaging in a scheme comprising specific and 

intentional torts” and “[e]ach corporate and individual defendant has conspired 

to repeatedly market, offer to sell, and then actually distribute products inside 

and outside of the State of Florida that infringe on Scanz’s propriety 

intellectual property.” (ECF No. 1, at ¶¶ 21-22; see also ECF No. 45, at 4.)

Outside of these more generic allegations, the complaint focuses almost 

exclusively on Sykes, Westphal, and JewMon Enterprises, who the Plaintiff 

asserts entered into an licensing agreement with Scanz that gave these 

Defendants access to Scanz’s trade secrets which the Defendants then reverse 

engineered to the detriment of Scanz in contravention of the alleged terms of 

the licensing agreement at issue between the Plaintiff and JewMon. The 

complaint also mentions that JewMon and the other entity Defendants shared 

corporate addresses and that Sykes had an interest in all of the entity 

Defendants, suggesting some relationship between those parties as well. The 

complaint, however, provides no facts supporting a conclusion that Bohen 

entered into any agreement with Sykes, Westphal, or any other of the 

Defendants to steal and profit from Scanz’s trade secret protected information. 

As the complaint fails to set forth any non-conclusory allegations connecting

Bohen with the other Defendants and fails to plead other contacts Bohen has 

with Florida to support a finding of specific personal jurisdiction, the Court 

finds that it lacks specific personal jurisdiction over Bohen. 

In light of the above, the Court grants Bohen’s motion to dismiss as the 

court lacks personal jurisdiction over Bohen under Florida’s long-arm statute. 

(ECF No. 39.) To the extent the Plaintiff asks the Court to take judicial notice 

of certain exhibits that the Plaintiff provided in support of the Court’s exercise 

of personal jurisdiction over the Defendant Bohen, the Court denies in part

the Plaintiff’s motion in light of its ruling on the Defendant Bohen’s motion to 

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dismiss. (ECF No. 46.) As the Plaintiff failed to set forth a prima facie case for 

the exercise of personal jurisdiction over Bohen, the Court will not take judicial 

notice of exhibits 1-4 which were submitted by the Plaintiff in support of the 

Court’s exercise of personal jurisdiction over Bohen. Even if the Court were to 

take notice of the materials provided by Scanz, from the descriptions provided 

by the Plaintiff, these materials do not provide evidence that Bohen undertook 

any agreement with Sykes, Westphal, or any other of the Defendants to support 

the Plaintiff’s allegations that Bohen was involved in a civil conspiracy. As the

Plaintiff failed make out a prima facie case for the exercise of personal 

jurisdiction over Bohen the Court notes that it also did not take notice of 

Bohen’s declaration, which was filed as an exhibit to the Defendant Bohen’s

motion to dismiss. 

B. Request for Judicial Notice

The Court turns next to the Defendants’ motion for the Court to take 

judicial notice of ten tweets from the twitter account @GetScanz, which were 

published between February 2016 and June 2017. (ECF No. 42, at 1.) The 

Defendants ask the Court to take judicial notice of these tweets in support of 

their claim that certain of the Plaintiff’s claims are time barred.

Taking judicial notice of facts under Federal Rule of Evidence 201 is “a 

highly limited process” which “bypasses the safeguards which are involved with 

the usual process of proving facts by competent evidence in district court.” 

Shahar v. Bowers, 120 F.3d 211, 214 (11th Cir. 1997). Accordingly, a court 

may only take judicial notice where the fact in question is not subject to 

reasonable dispute because it is either generally known within the territorial 

jurisdiction of the Court or capable of accurate and ready determination by 

resort to sources whose accuracy cannot reasonably be questioned. Id. The 

Eleventh Circuit noted that the types of facts a court can take judicial notice of 

are things like scientific facts, matters of geography, or matters of political 

history. Id. Where it is proper for a court to take judicial notice of a fact, 

consistent with Federal Rule of Evidence 201(c)(2), the Court must take notice 

of such fact where a party requests it and the court is supplied with the 

information to be noticed.

While the Defendants cast taking notice of materials on a website as 

uncontroversial, the Court finds that is not necessarily the case. In many 

cases, it appears where Courts take judicial notice of items such as Facebook 

posts, which the Court views as analogous to a tweet on Twitter, the 

authenticity of such content is either not in dispute or such internet postings

were expressly incorporated by reference into the Plaintiff’s complaint, neither 

of which happened here. See, e.g., Schroeder v. Volvo Grp. of N. Am., LLC, No. 

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LACV 20-05127-VAP, 2020 WL 6562242, at *3 (C.D. Cal. Sept. 3, 2020) 

(collecting cases where Courts have taken judicial notice of Instagram and 

Facebook posts where such materials were “arguably incorporated by 

reference” into the plaintiff’s complaint); Young v. Greystar Real Estate 

Partners, LLC, No. 3:18-cv-02149-BEN-MSB, 2019 WL 4169889, at *1-2 (S.D. 

Cal. Sept. 3, 2019) (taking judicial notice of Instagram and Facebook posts 

where the opposing party failed to object to the party’s motion); see also Boesen 

v. United Sports Publ’ns, Ltd., 20-CV-1552, 2020 WL 6393010, at *5 n.6 

(E.D.N.Y. Nov. 2, 2020) (taking judicial notice of Facebook posts where the 

authenticity of such post was not contested). Where Courts take judicial notice 

of websites more generally, such websites typically contain information made 

available by government entities. See Setai Hotel Acquisition, LLC v. Miami 

Beach Luxury Rentals, Inc., No. 16-21296-Civ, 2017 WL 3503371, at * (S.D Fla. 

Aug. 15, 2017) (Scola, J.) (noting the lack of a reasonable or understandable 

objection to a court taking “judicial notice of information publicly available 

from an official government website”); Pyure Brands, LLC v. Nascent Health 

Science LLC, No. 18-cv-23357, 2019 WL 7945226, at *3 (S.D. Fla. March 4, 

2019) (Ungaro, J.) (standing for the same proposition and collecting cases).2

The Court has found few cases where Courts have taken judicial notice of nongovernment published internet material. See, e.g., Barron v. Snyder’s-Lance, 

Inc., No. 13-62496-Civ, 2015 WL 11182066, at *4 (S.D. Fla. March 20, 2015) 

(Lenard, J.) (taking notice of prices contained in internet screen shots “insofar 

as they reflect a narrow and specific fact: the price of a certain product on a 

certain website on a certain date”). In taking judicial notice of this material, the 

Barron court relied on a decision from the Tenth Circuit, O’Toole v. Northrop 

Grumman Corp., in which the Tenth Circuit stated it “is not uncommon for 

Courts to take judicial notice of factual information found on the world wide 

web.” 499 F.3d 1218, 1225 (10th Cir. 2007). While seemingly helpful to the 

Defendants, the persuasiveness of the Court’s decision in O’Toole is lessened 

significantly as the party in that case, Northrop Grumman, failed to explain to 

2 For instance, the Court finds it appropriate to take judicial notice of certain business 

records provided by the Plaintiff relating to JewMon Enterprises, LLC, Millionaire 

Publishing LLC, Million Media, LLC, and Millionaire Media I, LLC from the website 

search.sunbiz.org, a database maintained by the Florida Department of State, Division 

of Corporations. The Court therefore grants in part the Plaintiff’s motion to take 

judicial notice (ECF No. 46) with respect to these documents, Exhibits 6-9, though 

notes these documents were not necessary to or relied upon by the Court in reaching 

the conclusions set forth in this order. With respect to Exhibit 5, the Court denies the 

Plaintiff’s request to take judicial notice of screenshots from the Wayback Machine, 

consistent with the Court’s prior orders. Setai, 2017 WL 3503371, at *7-8 (declining to 

take judicial notice of screenshots from the Wayback Machine).

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the Court “why its own website’s posting of historical [information] is 

unreliable.” Id. This also is inapplicable to the Defendants’ motion. As the 

factual predicate present in O’Toole is lacking here, the Court finds Barron 

unpersuasive.

Here, the tweets in question are not incorporated by reference into the 

Plaintiff’s complaint, are contested, and are not published on the internet by a 

government entity. Similarly, the material the Defendants ask the Court to take 

judicial notice of is not from the Plaintiff’s own website. The Defendants 

certainly may explore these tweets as they proceed through the discovery 

process, but the Court finds that asking the Court to take judicial notice of 

these materials at the motion to dismiss stage is improper. Therefore, the Court 

denies the Defendants’ motion for the Court to take judicial notice. (ECF No. 

42.) Even if the Court were to take judicial notice of these materials, like in 

Barron, it would be for the very narrow purpose to take note of the fact that a 

tweet was posted on a Twitter account on a certain date and time and not for 

the content of that tweet. The Court would not, as the Defendants request, look 

at the tweet and “infer Plaintiff’s awareness of the facts giving rise to this 

lawsuit and its potential claims against Defendants at the time of the [t]weets.” 

(ECF No. 42, at 4.) Accordingly, the Court finds that the Defendants have failed 

to argue that the Court should take judicial notice of these materials, and 

insofar as the Defendants’ arguments that the Plaintiff’s claims are time 

barred, the Court is not moved by those arguments. 

C. The Defend Trade Secrets Act (“DTSA”), 18 U.S.C. § 1836, and 

the Florida Uniform Trade Secrets Act (“FUTSA”), Fla. Stat. § 

688.001, et seq.

In their respective motions to dismiss, both Stockstorade.com and 

Westphal and JewMon, Sykes, the Millionaire Publishing entities, and 

Millionaire Media argue that the Plaintiff has failed to state a trade secret 

misappropriation claim under the DTSA and FUTSA. 

The DTSA provides the owner of a trade secret that is misappropriated 

with the ability to “bring a civil action . . . if the trade secret is related to a 

product or service used in, or intended for use in, interstate or foreign 

commerce.” 18 U.S.C. § 1836. A trade secret is broadly defined as “business, 

scientific, technical, economic, or engineering information . . . whether tangible 

or intangible . . . if the owner thereof has taken reasonable measures to keep 

such information secret and the information derives independent economic 

value, actual or potential, from not being generally known to, and not being 

readily ascertainable through proper means by, another person who can obtain 

economic value from the disclosure or use of the information.” 18 U.S.C. § 

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1839(3). A trade secret is misappropriated if it is disclosed or used “without 

express or implied consent by a person who . . . knew or had reason to know 

that the knowledge of the trade secret was . . . acquired under circumstances 

giving rise to a duty to maintain the secrecy of the trade secret or limit the use 

of the trade secret; or . . . derived from or through a person who owed a duty to 

the person seeking relief to maintain the secrecy of the trade secret or limit the 

use of the trade secret.” 18 U.S.C. § 1839(5). 

To bring a colorable claim under the DTSA, a plaintiff must plausibly 

allege that it possessed information of independent economic value, that was 

lawfully owned and for which the plaintiff took reasonable measures to keep 

secret and the defendant used or disclosed that information despite the 

plaintiff’s attempts to maintain its secrecy. Sentry Data Sys., Inc. v. CVS Health, 

361 F. Supp. 3d 1279, 1293 (S.D. Fla. 2018) (Bloom, J.).

The FUTSA provides a cause of action for misappropriation of trade 

secrets. Sentry Data Sys., Inc., 361 F. Supp. 3d at 1293. In order to prevail on a 

FUTSA claim, “‘a plaintiff must demonstrate that (1) it possessed a ‘trade 

secret’ and (2) the secret was misappropriated.’” Id. (quoting Yellowfin Yachts, 

Inc. v. Barker Boatworks, LLC, 898 F.3d 1279, 1297 (11th Cir. 2018)). For 

purposes of the FUTSA, a trade secret is defined as:

information, including a formula, pattern, compilation, program, device, 

method, technique, or process that: (a) [d]erives independent economic 

value, actual or potential, from not being generally known to, and not 

being readily ascertainable by proper means by, other persons who can 

obtain economic value from its disclosure or use; and (b) [i]s the subject 

of efforts that are reasonable under the circumstances to maintain its 

secrecy.

Fla. Stat. § 688.002(4). Misappropriation, for purposes of the FUTSA, includes,

among other things, “acquisition of a trade secret by another person who 

knows or has reason to know that the trade secret was acquired by improper 

means” as well as use of that trade secret “without express or implied consent 

by a person who (1) used improper means to acquire knowledge of the trade 

secret; or . . . knew or had reason to know that her or his knowledge of the 

trade secret was . . . acquired under circumstances giving rise to a duty to 

maintain its secrecy or limit its use.” Fla. Stat. 688.002(2). Finally, the FUTSA 

defines improper means as “theft, bribery, misrepresentation, breach or 

inducement of a breach of a duty to maintain secrecy, or espionage through 

electronic or other means.” Fla. Stat. § 688.002(1). Information that is 

“generally known or readily accessible . . . cannot qualify for trade secret 

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protection.” Am. Red Cross v. Palm Beach Blood Bank, Inc., 143 F.3d 1407, 

1410 (11th Cir. 1998). Whether information is a trade secret is a question of 

fact, such that at the motion to dismiss stage the movant must present clear 

authority that the information identified by a plaintiff is not protected. 

Allegiance Healthcare Corp. v. Coleman, 232 F. Supp. 2d 1329, 1335 (S.D. Fla. 

2002) (Moreno, J.).

The Defendants argue that the Plaintiff has failed to plead the existence 

of a trade secret as the Plaintiff’s broad generalizations “would literally include 

everything Scanz has ever owned or created in its corporate history.” (ECF No. 

41, at 13; ECF No. 40, at 8 (same).) The Court disagrees and finds, taking the 

Plaintiff’s allegations as true, that the Plaintiff has adequately plead the 

existence of a trade secret. In its complaint, the Plaintiff states that its 

business products are comprised of “technological and device-oriented” 

business solutions and platforms utilized by constituents of the securities 

industry. (ECF No. 1, at ¶ 2.) The Plaintiff further states that via its licensing 

agreement with JewMon that Scanz gave JewMon access to its “licensed 

subscription management back-office infrastructure as well as continually 

updated versions of the object code of the computer software making up the 

core of Scanz[’s] . . . related product offerings.” (ECF No. 26, at ¶ 26.) Far from 

vague, these allegations seem to be fairly specific in that they allege the 

Defendants stole back-office infrastructure and code that underlie Scanz’s 

products. Despite these allegations, the Defendants ask this Court to conclude 

the Plaintiff’s complaint is too vague to state a claim with particularity as 

Judge Altonaga found in VVIG, Inc. v. Alvarez, No. 18-23109-Civ, 2019 WL 

5063441 (S.D. Fla. Oct. 9, 2019) (Altonaga, J.). However, in VVIG, the Court 

noted the plaintiff’s allegations were a “‘grab-bag’ of information, so broad and 

conclusory to be nonsensical” alleging the stolen trade secret protected 

information was comprised of “‘all necessary know-how, standards and 

specifications’ . . . including ‘all information concerning the business affairs, 

products, marketing systems, technology, customers, end users, financial 

affairs, accounting statistical data’ . . . [and] ‘any other propriety and trade 

secrets.’” Id. at *3 (emphasis in original). That is not so here. Rather than the 

catch-all allegations at issue in VVIG, the Court finds that the Plaintiff’s 

allegations with respect to its trade secret protected information are specific 

and withstand scrutiny at the motion to dismiss stage. 

As a separate basis to attack the Plaintiff’s DTSA and FUTSA claims, the 

Defendants also claim that the Plaintiff failed to take reasonable steps to keep 

its trade secrets confidential. (ECF No. 40, at 9-10; ECF No. 41, at 14.) As 

stated above, both the DTSA and FUTSA require a plaintiff undertake 

reasonable efforts to maintain the secrecy of its trade secrets. Here too, the 

Case 1:20-cv-22957-RNS Document 56 Entered on FLSD Docket 01/07/2021 Page 11 of 21
Defendants’ arguments fall short. A review of the complaint shows numerous 

steps the Plaintiff took to safeguard its trade secrets. For instance, the 

licensing agreement, among other obligations, prevented the Defendants from 

copying the “look and feel” of Scanz’s program; made clear that Scanz retained 

ownership of its assets, including all technology and other intellectual property;

and noted that upon termination JewMon had to return or destroy all 

proprietary information it received during the course of its relationship with 

Scanz. (See ECF No. 1, at ¶¶ 28-30.) Far from evidencing that the Plaintiff 

failed to take steps reasonably maintain the secrecy of its trade secrets, the 

complaint sets forth numerous ways the Plaintiff attempted to safeguard and 

keep secret its proprietary information.

Finally, the Defendants claim that the Plaintiff failed to allege 

misappropriation for purposes of the DTSA and FUTSA. (ECF No. 40, at 10-11; 

ECF No. 41, at 14.) Once again, the Court finds that the Defendants’

arguments fall short. In their motions, both sets of Defendants ask the Court to 

follow Enteris Biopharma, Inc. v. Clinical Pharmacology of Miami, Inc., where the 

Court found a plaintiff failed to allege misappropriation where the plaintiff’s 

complaint literally recited the elements of misappropriation as that term is 

defined for purposes of FUTSA in a conclusory fashion. No. 14-22770-Civ, 

2015 WL 12085848, at *9-10 (S.D. Fla. March 20, 2015). Far from the

threadbare recitations in Enteris, the Plaintiff’s complaint alleges that the 

Defendants utilized Scanz’s trade secrets to develop their own “virtually 

identical market analysis platform as the one they had access to under the 

license agreement” notwithstanding their agreements with the Plaintiff to cease 

their use of and destroy Scanz’s information after termination of the licensing 

agreement. (ECF No. 44, at 11.) Accordingly, the Court finds that the Plaintiff 

has adequately alleged misappropriation. 

In light of the above, the Court denies the Defendants’ motions to the 

extent they allege the Plaintiff has failed to state a claim under Counts I and II 

of the complaint.

D. Preemption Under FUTSA

Having found the Plaintiff’s FUTSA claim survives the Defendants’ 

motions to dismiss, the Court next turns to the Defendants’ arguments that 

certain of the Plaintiff’s claims are preempted by FUTSA. FUTSA preempts 

certain “conflicting tort, restitutory, and other laws of this state providing civil 

remedies for misappropriation of a trade secret.” Fla. Stat. § 688.008(1). 

However, the law does not preempt “[c]ontractual remedies, whether or not 

based upon misappropriation of a trade secret” or “[o]ther civil remedies that 

are not based upon misappropriation of a trade secret.” Fla Stat. § 688.008(2). 

Case 1:20-cv-22957-RNS Document 56 Entered on FLSD Docket 01/07/2021 Page 12 of 21
In determining whether a plaintiff’s FUTSA claims preempt a plaintiff from 

pleading a separate, but related claim, the Court must evaluate “whether 

allegations of trade secret misappropriation alone comprise the underlying 

wrong; if so, the cause of action is barred by § 688.008” Id. at 1335-36. Put 

another way, a plaintiff’s separate claim is preempted if there is no “material 

distinction between the plaintiff’s FUTSA claim and the other allegation.” 

Sentry Data Sys., Inc., 361 F. Supp. 3d at 1294-95.

Here, the Defendants argue that the Plaintiff’s “common law tort claims 

are each preempted because they arise out of the core allegation that 

Defendants misappropriated the Plaintiff’s trade secrets and used them to 

develop the [Stockstotrade.com] website.” (ECF No. 40, at 17; ECF No. 41, at 9).

Accordingly, the Defendants ask the Court to dismiss Counts IV (constructive 

fraud), V (breach of fiduciary duty), VI (tortious interference); VII (unjust 

enrichment); VIII (conversion); and X3 (breach of the implied duty of good faith 

and fair dealing).

(1) Counts IV and V

Under Florida law, constructive fraud occurs “when a duty under a 

confidential or fiduciary relationship has been abused or where an 

unconscionable advantage has been taken.” Am. Honda Motor Co., Inc. v. 

Motorcycle Info. Network, Inc., 390 F. Supp. 2d 1170, 1179 (M.D. Fla. 2005). 

The fiduciary or confidential relationship for purposes of constructive fraud is 

broadly construed and exists where “confidence is reposed by one party and a 

trust is accepted by the other, or where confidence has been acquired and 

abused.” Id. Constructive fraud “will not lie where the parties are dealing at 

arms length because there is no duty imposed on either party to protect or 

benefit the other.” Id. The fact that one party places its trust or confidence in 

the other “does not create a confidential relationship in the absence of some 

recognition, acceptance, or undertaking of the duties of a fiduciary on the part 

of the other party.” Id. To prove such a relationship exists, a plaintiff must 

plead the existence of something beyond an “ordinary commercial 

relationship.” Fin-S Tech, LLC v. Surf Hardware Int’l-USA, Inc., 13-80645-Civ, 

2014 WL 12461349, at *9 (S.D. Fla. Jan. 7, 2014) (Ryskamp, J.).

The Defendants argue that this claim is preempted by FUTSA, but the 

Court does not agree. Rather, the Court finds that while the Plaintiff’s 

constructive fraud claim and FUTSA claim are related, they are not materially 

3 Count X of the Plaintiff’s complaint is in fact Count IX, though the Court will refer to 

it as Count X throughout this order for ease. The complaint non-consecutively numbers 

its counts, going straight to Count X from Count VIII without inclusion of a Count IX.

Case 1:20-cv-22957-RNS Document 56 Entered on FLSD Docket 01/07/2021 Page 13 of 21
indistinguishable. Therefore, the Court finds that Count IV is not preempted 

under FUTSA. However, this claim is still subject to dismissal as the Plaintiff 

fails to adequately state that the appropriate predicate relationship existed 

between the parties. While the Plaintiff claims that a “confidential relationship 

ar[ose] from and as a result of the license agreement” such that “each of the 

defendants . . . owed fiduciary duties of the highest character to Scanz to . . . 

honor the confidentiality, non-disclosure and non-piracy provisions of the 

license agreement” the Plaintiff fails to advance any facts allowing the Court to 

infer that the parties were dealing anything but at arms length when they 

entered into their licensing agreement and therefore it agrees that the parties 

had an ordinary business relationship. (ECF No. 1, at ¶ 75); see also Honda, 

390 F. Supp. 2d at 1179-80 (finding the lack of a fiduciary or confidential 

relationship where a party alleged there was an oral confidentiality agreement 

but failed to allege the the opposing party agreed to “undertak[e] . . . the duty 

to advise, counsel, protect, or benefit” that party.”). While the Plaintiff placed 

confidentiality protections into its license agreement with JewMon, the 

Plaintiff’s complaint does not allege that Sykes or JewMon somehow evidenced 

it was undertaking “recognition, acceptance, or undertaking of the duties of a 

fiduciary on the part of the other party.” Honda, 390 F. Supp. 2d at 1179. That 

the Plaintiff simply trusted the Defendants as business partners for the 

Plaintiff does not create the predicate relationship necessary for the Plaintiff’s 

constructive fraud count to go forward. 

As an alternative basis to survive the Defendants’ motions to dismiss, the

Plaintiff argues the fact that the Plaintiff and the Defendants shared in the 

“fruits and losses” of their agreement should require the Court to find that a 

fiduciary relationship existed between the parties. See Optimum Techs., Inc. v. 

Henkel Consumer Adhesives, Inc., 496 F.3d 1231, 1249 (11th Cir. 2007). While 

the Plaintiff cites Optimum in support of their contention, Optimum cuts against

the Plaintiff’s arguments. The Plaintiff correctly states that “joint ventures and 

legal partnerships” can give rise to a fiduciary duty, but the Plaintiff fails to 

allege facts to support a finding that such a relationship was present here. 

(ECF No. 44, at 17.) Indeed, as the Eleventh Circuit stated in Optimum, “merely 

calling the relationship a joint venture . . . does not make it so.” Id. Whether 

such a relationship exists turns on considerations such as whether the 

partners share “fruits and losses with an equal right, express or implied, to 

direct and control the conduct of the enterprise.” Id. (emphasis added). Rather, 

the complaint seems to indicate simply that the parties had a normal business 

relationship giving rise to no special duties. Id. Accordingly, the Court also 

finds that the Plaintiff has failed to adequately allege a breach of fiduciary duty. 

Case 1:20-cv-22957-RNS Document 56 Entered on FLSD Docket 01/07/2021 Page 14 of 21
(2) Count VI

Turning next to Count VI, the Court notes that, in order to plead a claim 

for tortious interference under Florida law, a Plaintiff must plead “(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.” Duty Free Americas, Inc. v. Estee Lauder Cos., Inc., 

797 F.3d 1248, 1279 (11th Cir. 2015). The party “allegedly interfered with must 

be actual and identifiable, and not just a large group such as the community at 

large.” Allegiance Healthcare Corp., 232 F. Supp. 2d 1329 at 1336.

Regardless of whether this claim is preempted by FUTSA, the Court finds 

that the Plaintiff has failed to state a claim for tortious interference. 

Specifically, the Court finds that the Plaintiff has failed to identify an actual 

and identifiable group with whom the Defendants interfered. In the Plaintiff’s 

complaint, the Plaintiff states it has “numerous business relationships with 

clients in Florida, located throughout the United States and located throughout 

the world,” that “[a]t all times material hereto, the [D]efendants named in this 

Count had full knowledge of such business relationships” and such Defendants 

“have intentionally and unjustifiably interfered with these business 

relationships.” (ECF No. 1, at ¶¶ 83-86.) These allegations fail to adequately 

plead that the Defendants interfered with an actual and identifiable business 

relationship of the Plaintiff. Accordingly, the Court grants the Defendants’ 

motion to dismiss Count VI of the Plaintiff’s complaint.

(3) Counts VII and VIII

The Court agrees with the Defendants that Counts VII and VIII of the 

Plaintiff’s complaint are preempted by the FUTSA. These counts essentially 

allege that the Defendants misappropriated the Plaintiff’s trade secrets and 

wrongfully used those trade secrets to their benefit. As the Court finds there is 

no material distinction between these claims and the Plaintiff’s FUTSA claim, 

the Court dismisses Counts VII and VIII. See, e.g., Gonzalez-Hernandez v. 

Orbay, No. 08-21782-Civ, 2009 WL 10668626, at *3 (S.D. Fla. Jan. 15, 2009) 

(King, J.) (finding unjust enrichment claim based on “nearly identical 

allegations” as preempted by FUTSA); see also Pelfrey v. Mahaffy, No. 17-

80920-Civ, 2018 WL 3110797, at *3 (S.D. Fla. Feb. 7, 2018) (Middlebrooks, J.) 

(finding FUTSA preempted conversion claim as the plaintiff alleged the theft of 

the same property that it characterized as constituting a trade secret). 

Case 1:20-cv-22957-RNS Document 56 Entered on FLSD Docket 01/07/2021 Page 15 of 21
(4) Count X

Finally, the Court turns to the Plaintiff’s claim for breach of the implied 

duty of good faith and fair dealing. It appears that some of the parties agree 

that the Plaintiff’s claim for a breach of the implied duty of good faith and fair 

dealing sounds in breach of contract and therefore would not be evaluated for 

preemption under FUTSA. Nonetheless, some of the Defendants argue that this 

claim is preempted by FUTSA. (ECF No. 40, at 17 n.4.) Regardless of this issue, 

the Court agrees that the Plaintiff’s claim for breach of the implied duty of good 

faith and fair dealing must be dismissed as the Plaintiff has not asserted a 

claim for breach of contract as one of the counts in its complaint. See 

Centurion Air Cargo, Inc. v. United Parcel Service Co., 420 F.3d 1146, 1152 

(11th Cir. 2005) (“This court has held that a claim for a breach of the implied 

covenant of good faith and fair dealing cannot be maintained under Florida law 

in the absence of a breach of an express term of a contract.”); see also Alan’s of 

Atlanta, Inc. v. Minolta Corp., 903 F.2d 1414, 1429 (11th Cir. 1990) (noting the 

implied duty of good faith and fair dealing is “a doctrine that modified the 

meaning of all explicit terms in a contract, preventing a breach of those explicit 

terms . . . [b]ut it is not an undertaking that can be breached apart from those 

terms.”); see also Barnes v. Burger King Corp., 932 F. Supp. 1420, 1437-38 

(S.D. Fla. 1996) (noting “Florida contract law recognizes the implied covenant of 

good faith and fair dealing in every contract” but the application of the 

covenant is “not without limits, and there are many circumstances under 

which courts will not allow a party to pursue a cause of action for breach of the 

implied covenant” including “where there is no accompanying action for breach 

of an express term of the agreement.”). Accordingly, the Court dismisses Count 

X of the Plaintiff’s complaint. 

For the reasons stated above, the Court grants the Defendants’ motions 

to dismiss Counts IV, V, VI, VII, VIII, and X of the Plaintiff’s complaint. 

E. Violation of the Lanham Act, 15 U.S.C. § 1125(a)

In Count III of the Plaintiff’s complaint, the Plaintiff asserts the 

Defendants have violated the Lanham Act by “issuing, and . . . continuing to 

issue, false and misleading statements of fact to the market place while 

omitting substantial disclosures the market and Scanz were entitled to know” 

including “representations and omissions to the effect that they had lawfully 

developed and now owned their own market analysis software” which in the 

view of the Plaintiff “creates an untrue impression in the marketplace.” (ECF 

No. 1, at ¶ 64.) The Plaintiff alleges that the Defendants “have used in national 

and international commerce words, symbols and devices” that have furthered 

Case 1:20-cv-22957-RNS Document 56 Entered on FLSD Docket 01/07/2021 Page 16 of 21
the Defendants’ “outright lie that these defendants have themselves lawfully 

developed a virtually identical market analysis product line as the market 

analysis product offerings sold . . . by Scanz for nearly 20 years.” (ECF No. 1, at 

¶ 65.) As a result of this conduct, the Plaintiff alleges the Defendants have 

“already caused confusion and deceived the public with respect to the origin, 

sponsorship and approval of these defendants’ pirated stock trading platform.” 

(ECF No. 1, at ¶ 66.) 

The Defendants, in turn, argue that they cannot discern from the 

Plaintiff’s complaint whether the Plaintiff is asserting a claim pursuant to 

Section 43(a)(1)(A) or Section 43(a)(1)(B) of the Lanham Act. 15 U.S.C. § 

1125(a)(1). These provisions provide:

(1) Any person who, on or in connection with any good or services . . . 

uses in commerce . . . any false designation of origin, false or 

misleading description of act, or false or misleading representation of 

fact, which --

(A) is likely to cause confusion . . . as to the origin, sponsorship, or 

approval of his or her goods, services, or commercial activities 

by another person, or

(B) in commercial advertising or promotion, misrepresents the 

nature, characteristics, qualities, or geographic original of his or 

her or another person’s goods or services, or commercial 

activities,

shall be liable in a civil action by any person who believes that he or she 

is likely to be damaged by such act.

15 U.S.C. § 1125(a). The Defendants also argue that the Supreme Court’s 

opinion in Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003) 

defeats any potential Lanham Act claim advanced by the Plaintiff. 

The Lanham Act “was intended to make ‘actionable the deceptive and 

misleading use of marks,’ and ‘to protect persons engaged in . . . commerce 

against unfair competition.’” Dastar, 539 U.S. at 28 (quoting 15 U.S.C. § 1127). 

While much of the Lanham Act deals with trademarks and related marks, 

Section 43 of the Lanham Act “is one of the few provisions that goes beyond 

trademark protection” and creates “a federal remedy against a person who used 

in commerce either a false designation of original, or any false description or 

representation in connection with any goods or services.” Id. at 29 (internal 

quotations omitted). Section 43, however, does not have boundless application 

and is not a federal codification of the “overall law of unfair competition . . . but 

can only apply to certain unfair trade practices prohibited by its text.” Id. The 

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Supreme Court noted in Dastar that Section 43 covers claims relating to “origin 

of production as well as geographic origin” which includes “reverse passing off” 

claims. Id. at 30. Reverse passing off claims are claims where “a producer

misrepresents someone else’s goods or services as his own.” Id. at 27 n.1. 

The Court agrees with the Defendants that the Plaintiff has failed to state 

a viable claim under Section 43 of the Lanham Act. In Appjigger GmbH v. BLU 

Products, Inc., the Court considered whether a plaintiff properly stated a “false 

designation of origin” claim under the Lanham Act where the plaintiff claimed 

the defendant violated Section 43 of the Lanham Act by suggesting through its 

advertising that the defendant was the “origin” of the plaintiff’s software. No. 

15-22313-Civ, 2016 WL 4119720, at *3 (S.D. Fla. March 7, 2016) (Williams, 

J.). The Court found the plaintiff failed to state claim because Dastar held that 

“origin” for purposes of Section 43 “did not refer to the author of any idea, 

concept, or communication embodied in a good, but to the producer of the 

tangible good itself.” Id. Applying this principle, the Court noted that the 

Eleventh Circuit has “easily disposed of” false designation of origin claims 

where plaintiffs have claimed that defendants unlawfully sold items they 

created because such claims “do not give rise to a claim under § 1125.” Id. 

(discussing Thompkins v. Lil’ Joe Records, Inc., 476 F.3d 1294, 1310 (11th Cir. 

2007). 

The Plaintiff also fails to state a false advertising claim under the 

Lanham Act. Authorship of something is “not a nature, characteristic, or 

quality, as those terms are used in Section 43(a)(1)(B) of the Lanham Act.” 

Appjigger, 2016 WL 4119720, at *4. A plaintiff “cannot plead around Dastar, by 

‘shoe-horn[ing]’ a claim for improper authorship credit into a false advertising 

theory.” Id. (quoting Wilchombe v. Teevee Toons, Inc., 515 F. Supp. 2d 1297, 

1305 (N.D. Ga. 2007)). The Plaintiff seems to suggest the basis of its false 

advertising claim is that the Defendants are promoting their own product while 

“failing to properly attribute the source of the underlying technology embodied 

in the product” but that is precisely the type of claim that is not actionable 

under the Lanham Act. Appjigger, 2016 WL 4119720, at *4.

Finally, to the extent the Plaintiff’s assertions as to the Defendants use of 

the “look and feel” of their product attempt to state a claim for trade dress 

infringement, the Plaintiff must establish that the product is confusing similar 

to its product, the similar features of the two products are primarily nonfunctional, and the plaintiff’s product is distinctive. Id. While the Plaintiff has

plead confusingly similarity, they have not adequately plead any facts 

regarding non-functionality. Id. Accordingly, even construing the complaint as 

broadly as possible, the Court finds that the Plaintiff has failed to state a claim 

under the Lanham Act. 

Case 1:20-cv-22957-RNS Document 56 Entered on FLSD Docket 01/07/2021 Page 18 of 21
F. Conspiracy Liability as to the Remaining Defendants

Finally, the Court turns to the Defendants’ arguments that the Plaintiff 

has failed to adequately plead civil conspiracy with respect to the remaining

Defendants, The Court set forth the elements for pleading civil conspiracy in 

Section 3.A.2, supra. 

The Defendants argue in their briefing that the Plaintiff has failed to 

adequately plead civil conspiracy because the complaint provides only 

conclusory allegations with respect to the various Defendants, and in any case, 

there can be no conspiracy based on the intracorporate conspiracy doctrine. In 

response, the Plaintiff argues the intracorporate conspiracy doctrine is 

inapplicable because each of the corporate defendants are alter egos of Sykes

and moreover that the Plaintiff has sufficiently plead conspiracy based on the 

facts alleged in the complaint. In support of its conspiracy allegation, the 

Plaintiff states, among other things, that “JewMon, Million Publishing, 

Millionaire Media, StocksToTrade, Sykes, [and] Westphal . . . engaged in a civil 

conspiracy to misappropriate the Scanz’ Assets and Scanz Trade Secrets . . . 

through Sykes’s domination, control and alter ego status over the affairs of 

JewMon, Millionaire Publishing, Millionaire Media and StocksToTrade in such 

a way as Sykes cooperated with Westphal . . . to formulate and utilize each of 

these entities to hide the real party in interest with respect to the object of the 

conspiracy and thereby buy themselves enough time to perfect their theft of the 

Scanz Assets and Scanz Trade Secrets.” (ECF No. 1, ¶ 39.) 

At the outset, while certain of the Defendants allege the Plaintiff’s 

conspiracy claims must meet the heightened pleading standards of Federal 

Rule 9(b) on the basis that they sound in fraud, the Court does not agree. See, 

e.g., Lobo Capital Partners, LLC v. Forte, No. 8:12-cv-2029-T-33AEP, 2013 WL 

1279009, at *3 (S.D. Fla. March 28, 2013) (declining to apply heightened 

pleading standards to civil conspiracy allegations in the context of a claim 

regarding theft and use of trade secrets). As the Plaintiff need not satisfy 

heightened pleading standards, the Court agrees with the Plaintiff that at this 

early stage of the litigation, the Plaintiff has sufficiently plead conspiracy with 

respect to the remaining Defendants. Unlike the conclusory allegations with 

respect to Defendant Timothy Bohen, the complaint states that Defendants 

Westphal and Sykes are the members of JewMon and notes that JewMon, 

Millionaire Publishing, Millionaire Media, and Stockstotrade.com all share a 

corporate office address in Florida, with at least Sykes having some interest in 

each of these entities. (ECF No. 1, at ¶¶ 4-14.) Notably, with respect to Timothy 

Bohen, the complaint failed to state in a non-conclusory way the existence of a 

relationship between Bohen and the other Defendants. These allegations, 

Case 1:20-cv-22957-RNS Document 56 Entered on FLSD Docket 01/07/2021 Page 19 of 21
together with other allegations pertaining to these Defendants set forth in the 

complaint, are sufficient to support the Plaintiff’s claim of civil conspiracy.

While the 

While the Defendants correctly note that the intracorporate conspiracy 

doctrine “holds that acts of corporate agents are attributed to the corporation 

itself, thereby negating the multiplicity of actors necessary for the formation of 

a conspiracy” McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1036 (11th 

Cir. 2000), the Defendants fail to acknowledge that while Westphal and Sykes 

may be members of JewMon Enterprises, LLC, the Defendants do not allege 

JewMon, and the other corporate entity Defendants are related. See Lobo 

Capital Partners, 2013 WL 1279009, at *3. Accordingly, the Plaintiff’s 

allegations as to civil conspiracy are not subject to dismissal under the 

intracorporate conspiracy doctrine.

4. Conclusion

In sum, the Court grants Defendant Timothy Bohen’s motion to dismiss 

based on lack of personal jurisdiction. (ECF No. 39.) The Court grants in part 

and denies in part Stockstotrade.com Inc and Zachary Westphal’s (ECF No. 

40); and JewMon Enterprises, LLC, Timothy Sykes, Millionaire Publishing, LLC 

(a Florida limited liability corporation), Million Publishing, LLC (a Colorado 

limited liability corporation), and Millionaire Media, LLC’s (ECF No. 41) 

motions to dismiss. Specifically, the Court grants the remaining Defendants’

request to dismiss Counts III through X of the Plaintiff’s complaint. However, 

the Court denies the Defendants’ request for the Court to dismiss Counts I and 

II of the Plaintiff’s complaint. 

The Court also notes that both parties filed motions for the Court to take 

judicial notices of documents including tweets, YouTube videos, and various

other documents, including corporate documents from a website maintained by 

the Florida Department of State, Division of Corporations. For reasons stated 

above, the Court denies the Defendants’ motion to take judicial notice (ECF 

No. 42.) The Court also grants in part and denies in part the Plaintiff’s 

motion to take judicial notice. (ECF No. 46.) While the Court granted the 

Plaintiff’s request to take judicial notice of Exhibits 6-9, the Court’s decision 

did not rely in whole or in part on these documents.

Finally, the Court notes that its practice in cases with multiple plaintiffs 

or defendants is for the parties to file joint motions and consolidated 

responses and replies unless there are clear conflicts of position. If such a 

conflict of position exists, the parties must explain the conflicts in their 

separate filings. All future filings must comply with this practice. 

Case 1:20-cv-22957-RNS Document 56 Entered on FLSD Docket 01/07/2021 Page 20 of 21
Done and ordered at Miami, Florida on January 6, 2021.

________________________________

Robert N. Scola, Jr.

United States District Judge

Case 1:20-cv-22957-RNS Document 56 Entered on FLSD Docket 01/07/2021 Page 21 of 21