UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-23325-CIV-DIMITROULEAS

BRIGHTSTAR CORP.,

Plaintiff,

v.

DAVID MAYLAND,

Defendant.

/

DAVID MAYLAND,

Counter-Plaintiff,

v.

BRIGHTSTAR CORP., BRIGHTSTAR

GLOBAL BROUP, INC.,

Defendant.

/

ORDER GRANTING IN PART COUNTER-DEFENDANTS’ MOTION TO DISMISS

THIS CAUSE is before the Court upon Counter-Defendants’ Joint Motion to Dismiss 

Counter-Plaintiff’s/Defendant’s Counterclaims with Prejudice, or Alternatively, Motion to Strike 

Jury demand and References to Anti-SLAPP in Counterclaims [DE 11] (“Motion”). The Court 

has considered the Motion, Counter-Plaintiff’s Response [DE 17], Counter-Defendants’ Reply 

[DE 18], and the record in this case and is otherwise advised in the premises. For the reasons 

discussed herein, the Motion shall be granted in part.

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I. BACKGROUND 

Counter-Plaintiff was employed by Counter-Defendant Brightstar Corp. (“Brightstar”) 

from August 2013 through July 2020 in various senior management positions. [DE 17 at 3]. In 

August 2016, he was selected to participate in Brightstar’s Long-Term Incentive Plan (“LTIP”). 

Id. Under the terms of the LTIP, if Brightstar’s valuation hit a certain threshold by the end of a 

specified performance period, then Counter-Plaintiff would be entitled to a bonus, provided he 

remained employed at Brightstar. Id. at 4. Due to poor performance in 2018, the bonuses were 

not paid, and the LTIP was amended to extend the performance period through the end of 2019, 

to increase the target bonuses, and to reduce the valuation threshold. Id.

It is undisputed that Counter-Plaintiff remained employed at Brightstar through the 

necessary date. However, a third-party valuation firm found that Brightstar did not meet the 

valuation threshold. [DE 7 at 20]. Therefore, no bonuses were paid under the LTIP. Id. Upon 

review of the valuation, however, Counter-Plaintiff determined that Brightstar had sent the 

valuation firm figures that differed significantly from the figures it had provided to other thirdparty lenders, which allegedly painted a more favorable picture of Brightstar’s worth. Id. at 20-

21. Counter-Plaintiff, who has a background in finance, concluded that the information provided 

to the valuation firm was incorrect, and that a correct valuation would yield a result that 

exceeded the threshold. Id. at 21-22. He brought his valuation to the attention of Catherine

Smith, Brightstar’s Chief Administrative Officer and General Counsel/Head of Ethics, which 

began a two-weeks discourse over telephone and email in which Counter-Plaintiff accused 

Brightstar of providing fraudulent data to the valuation firm. Id. at 22-24. Two weeks after 

bringing his concerns to Smith, on July 1, 2020, Counter-Plaintiff was terminated. Id. at 24.

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Brightstar brought suit against Counter-Plaintiff a few months after firing him, asserting 

that Counter-Plaintiff had violated the Defend Trade Secrets Act, the Florida Uniform Trade 

Secrets Act, and a restrictive covenant agreement. [DE 1]. Counter-Plaintiff filed an answer 

denying all allegations against him and asserting two counterclaims against Brightstar and its 

parent company: breach of contract and violation of Florida’s Whistleblower Act. [DE 7]. 

Counter-Defendants now ask for these counterclaims to be dismissed. 

II. LEGAL STANDARD

“[A] motion to dismiss a counterclaim is evaluated in the same manner as a motion to 

dismiss a complaint.” Martin v. Partsbase, Inc., No. 20-80235-CIV, 2020 WL 7495536, at *2 

(S.D. Fla. Dec. 4, 2020). Under Federal Rule of Civil Procedure 12(b)(6), a party may move a 

court to dismiss all or part of a complaint for failure to state a claim upon which relief may be 

granted. When reviewing a motion to dismiss, “[a]ll of the factual allegations in the complaint 

must be accepted and construed in the light most favorable to the plaintiff.” Young Apartments, 

Inc. v. Town of Jupiter, FL, 529 F.3d 1027, 1037 (11th Cir. 2008). Courts need not, however, 

accept mere legal conclusions. Pouyeh v. Bascom Palmer Eye Inst., 613 F. App'x 802, 808 (11th 

Cir. 2015). To survive a motion to dismiss, a complaint must therefore contain “sufficient 

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). That is to say, the alleged facts must “raise a right to relief above the speculative level.” 

Twombly, 550 U.S. at 555.

III. DISCUSSION

Counter-Defendants assert that both Count I and Count II of the counterclaims 

(“Counterclaim I” and “Counterclaim II,” respectively) must be dismissed because they both fail 

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to state a claim upon which relief may be granted. In the alternative, they ask the Court to strike 

Counter-Plaintiff’s request for special damages and attorneys’ fees in Counterclaim I, his jury 

demand, and all references to its action against Counter-Plaintiff as a strategic lawsuit against 

public participation, or SLAPP suit. The Court shall address each counterclaim in turn.

A. Counterclaim I: Breach of Contract

Under Florida law, a breach of contract claim requires a showing of: 1) the existence of a

contract; (2) a material breach of that contract, and (3) damages resulting from the breach. Vega

v. T-Mobile USA, Inc., 564 F.3d 1256 (11th Cir. 2009) (citing Friedman v. N.Y. Life Ins. Co., 985

So.2d 56, 58 (Fla. 4th DCA 2008). Counter-Defendants assert that Counter-Plaintiff cannot

show the first element because the LTIP was not an enforceable contract. Counter-Plaintiff 

responds that the LTIP constitutes an offer, acceptance, consideration, and sufficient

specification of essential terms, which is all Florida law requires of an enforceable contract. 

Although Counter-Plaintiff correctly states the elements of an enforceable contract under 

Florida law, see St. Joe Corp. v. McIver, 875 So. 2d. 375, 381 (Fla. 2004), his response neglects 

the fact that Florida courts have consistently found that incentive schemes like the LTIP do not 

satisfy all those elements. For example, in Parrish v. Gen. Motors Corp., 137 So. 2d 255 (Fla. 

2nd DCA 1962), an employee alleged that his former employer had breached a contract when the 

employer failed to pay him an annual bonus pursuant to a bonus plan. That bonus plan 

specifically stated that all administrative authority was delegated to a committee appointed by 

the employer, and that the committee would have discretion with respect to the determination of 

each award. Id. at 256. The Florida appellate court found that a “bonus, under the plan 

described herein, partakes of gratuity while lacking essential elements of contractual obligation.” 

Id. at 258. The court further found that where a plan puts an employee on notice that “a bonus 

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award may be granted or withheld as to any employee at the discretion of the employer,” the 

incentive is only a “mere possibility” of a bonus, not an enforceable right. Id. Similarly, in

OneSource Facility Servs., Inc. v. Mosbach, 508 F. Supp. 2d 1115 (M.D. Fla. 2007), a federal 

district court applying Florida law found that an employee could not show that a bonus plan 

constituted an enforceable contract where the plan specifically stated that the employer’s senior 

management were imbued with sole authority and discretion to administer the plan, and that the 

plan could be amended or terminated at any time. “[I]t is clear from the terms of the [] Summary 

Document . . . that there was no contractual duty on the part of OneSource to pay [the plaintiff]

or any of its other Vice Presidents bonuses . . . .” Id. at 1123.

Counter-Plaintiff asserts (i) that these cases are inapposite because the plans at issue in 

Parrish and OneSource are appreciably different from the LTIP, and (ii) that Focus Mgmt. Grp. 

USA, Inc. v. King, 171 F. Supp. 3d 1291 (M.D. Fla. 2016), more closely resembles the case at 

hand. Neither argument is persuasive. With respect to the latter, in King, the court specifically 

found that the employee’s bonus compensation was “interwoven with the terms of [his]

employment.” Id. at 1298. The same is not true of LTIP. Whereas in King, the bonus formula

was described in the employee’s offer letter and “expressly offered as an incentive to secure 

[King] as an employee,” Counter-Plaintiff had already been employed with Brightstar for three 

years before being selected as an LTIP participant. Also, King had been paid consistent with the 

bonus formula for several years, while Counter-Plaintiff has never received incentive 

compensation from the LTIP, and in fact has been denied a payout once before. There are no 

facts in the present case from which the Court could conclude that the LTIP was sufficiently 

“interwoven” with Counter-Plaintiff’s employment contract such that it could be the basis for a

breach of contract claim.

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Nor does the Court find that the facts of Parrish and OneSource are appreciably 

distinguishable from those of this action. Counter-Plaintiff states (i) that the alleged bonus 

entitlement in Parrish was oral, whereas here the entitlement is pursuant to a written document, 

and (ii) that, unlike the plan at issue in OneSource, the LTIP’s terms only allow it to be amended 

or terminated if such termination or amendment would not adversely affect a participant’s 

payout. But although the plaintiff in Parrish was employed pursuant to an oral agreement, the 

bonus plan at issue there was reduced to writing, and the court’s determination was based 

entirely on those written terms. The question of entitlement had nothing to do with the plaintiff’s 

oral employment contract. And while the LTIP does have a slightly different amendment 

provision than the plan in OneSource did, this minor difference does not render the LTIP an 

enforceable contract. The amendment clause was only one provision of several upon which the 

OneSource court based its determination. The court also noted that the One Source plan 

explicitly disavowed that any bonus plan participant would have a right to any bonus payments

and that the plan was to be administered solely by the employer’s senior management. Id. at 

1122 (M.D. Fla. 2007).

Here, it is undisputed that the LTIP stated (i) that all authority to interpret, construe, and 

administer the plan was vested in Brightstar’s Board’s Compensation Committee, (ii) that the 

Compensation Committee had the authority to determine entitlement to LTIP awards and the 

amounts to be awarded, (iii) that all the Compensation Committee’s decisions would be final and 

binding upon all participants, and (iv) that all bonuses under the LTIP were discretionary. 

Looking at the LTIP as a whole, it is clear that it does not qualify as an enforceable contract 

under Florida law. The Court therefore concludes that Counter-Plaintiff has failed to state a 

claim for breach of contract and Counterclaim I must be dismissed. 

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B. Counterclaim II: Florida Whistleblower Act

To state a claim under the Florida Whistleblower Act (“FWA”), Counter-Plaintiff must 

show (1) that he engaged in statutorily protected expression; (2) that he suffered an adverse 

employment action; and (3) that the adverse employment action was causally linked to the 

statutorily protected activity. Kearns v. Farmer Acquisition Co., 157 So. 3d 458, 462 (Fla. 2d 

DCA 2015) (quoting White v. Purdue Pharma, Inc., 369 F. Supp. 2d 1335, 1336 (M.D. Fla. 

2005)). Counter-Defendants assert that Counter-Plaintiff has failed to show either the first or the 

third of these elements. Counter-Plaintiff responds that with respect to the first element, he has 

clearly asserted that he reasonably believed that Brightstar engaged in unlawful employment 

practices and violated securities laws. And with respect to the third element, Counter-Plaintiff 

argues that he has alleged sufficient facts to show that his termination was retaliation for his 

objection to Brightstar’s alleged unlawful acts. 

As a preliminary matter, Counter-Defendants argue that the Court should disregard the 

assertion that Counter-Plaintiff accused Brightstar of violating Securities and Exchange 

Commission (“SEC”) regulations because this allegation is absent from Counter-Plaintiff’s 

pleading. The first mention of any alleged SEC violation is in Counter-Plaintiff’s response brief. 

Counter-Plaintiff attaches an email as an exhibit to his response that shows that he told Smith “I 

believe that such a conspicuous fraud is a clear violation of [SEC] regulations . . . .” (ECF No. 

17-3 at 2). But “typically, a motion to dismiss must be converted into a motion for summary 

judgment when a district court considers matters outside the pleadings.” Basson v. Mortg. Elec. 

Registration Sys., Inc., 741 F. App'x 770 (11th Cir. 2018) (citing Fed. R. Civ. P. 12(d)). There is 

an exception to this rule, however, if the extraneous document is referenced in a pleading, is 

central to the pleading, and no party questions its authenticity. Id. Counter-Defendants do not 

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argue that the email itself is inauthentic, and the email is referenced in both Counter-Plaintiff’s 

and Counter-Defendants’ pleadings. The Court cannot find, however, that it is central to 

Counter-Plaintiff’s pleading. The plain language of Counterclaim II states that the FWA claim is 

predicated upon an allegation of unlawful employment practices, not an allegation of SEC 

violations. There is no mention anywhere in Counter-Plaintiff’s pleading that he made any such 

accusation while employed at Brightstar. In fact, Counter-Plaintiff specifically edited excerpts 

from the email in question to omit the reference to SEC regulations. This is not the sort of 

treatment one would expect to be given to a document that is central to a pleading. The Court 

will therefore not consider the email exhibit in this discussion. 

Counterclaim II clearly asserts that Counter-Plaintiff’s FWA claim is based upon his 

accusation that Brightstar engaged in unlawful employment practices. It is also reasonably clear 

that the unlawful practice Counter-Plaintiff is referring to is the breach of contract alleged in 

Counterclaim I. As discussed above, however, Counter-Plaintiff has failed to properly state that 

claim, and therefore he has also failed to properly state a predicate offense for his FWA claim. 

Consequently, the Court must agree with Counter-Defendants that Counterclaim II must also be 

dismissed.

C. Leave to Amend

Counter-Plaintiff asks, if his counterclaims are dismissed, that he be granted leave to 

amend his pleading. While the Court disagrees with Counter-Plaintiff’s assertion that to deny 

him that opportunity this early in the action would be “impermissible,” Rule 15 of the Federal 

Rules of Civil Procedure does state that courts “should freely give leave when justice so 

requires.” Given that this matter is in the early stages of litigation, and that Counter-Defendants 

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did not reply to Counter-Plaintiff’s request for leave to amend, the Court will grant CounterPlaintiff the opportunity to refile his pleading.

Because the Court has found that Counter-Plaintiff’s claims are due to be dismissed as 

currently pled, the Court will not address, at this time, each potential issue with the 

counterclaims, including Defendants’ alternative request to strike Counter-Plaintiff’s jury 

demand and anti-SLAPP allegations. The Court advises Counter-Plaintiff to consider the issues 

raised by Defendants in drafting amended counterclaims.

IV. CONCLUSION

Based on the foregoing, it is accordingly ORDERED AND ADJUDGED that:

1. Counter-Defendants’ Joint Motion to Dismiss Counter-Plaintiff’s/Defendant’s 

Counterclaims with Prejudice, or Alternatively, Motion to Strike Jury demand and 

References to Anti-SLAPP in Counterclaims [ DE 11] is GRANTED in part. 

2. Counter-Plaintiff’s counterclaims are DISMISSED without prejudice to CounterPlaintiff filing an amended pleading on or before April 27, 2021.

DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, 

this April 13, 2021.

Copies provided to:

Counsel of record

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