UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-CV-61992-RAR

AVINI HEALTH CORPORATION, 

Plaintiff,

v. 

BIOGENUS LLC, 

Defendant. 

____________________________________/ 

ORDER GRANTING IN PART PLAINTIFF’S 

MOTION FOR DEFAULT FINAL JUDGMENT

THIS CAUSE comes before the Court upon Plaintiff Avini Health Corporation’s Renewed 

Motion for Default Final Judgment (“Motion”), [ECF No. 70], filed on April 19, 2024. Having 

carefully reviewed the Motion, the record, and being otherwise fully advised, it is hereby 

ORDERED AND ADJUDGED that the Motion, [ECF No. 70], is GRANTED IN PART

as set forth herein. In accordance with Fed. R. Civ. P. 58(a), final judgment shall be entered 

separately in favor of Plaintiff as to the sole count in the First Amended Complaint (“FAC”), [ECF 

No. 18]. 

BACKGROUND1

A. Factual Background

Plaintiff Avini Health Corporation (“Avini”) filed a Complaint on October 25, 2022 

naming as Defendant Biogenus LLC (“Biogenus”). See generally Complaint, [ECF No. 1]. On 

January 17, 2023, Avini subsequently filed a First Amended Complaint (“FAC”), [ECF No. 18]. 

1 The factual background is taken from Plaintiff’s FAC, the Motion, the Declaration of Neil Roth (“Roth 

Declaration”), [ECF No. 70-1], and the April 19, 2024 Declaration of Daniel DeSouza (“DeSouza Decl.”), 

[ECF No. 70-2]. Mr. Roth (“Roth”) is the CEO and President of Plaintiff Avini Health Corporation. Roth 

Decl. ¶ 2. Attorney Daniel DeSouza (“DeSouza”) is the sole shareholder of the law firm DeSouza Law, 

P.A. which provided Plaintiff’s legal services throughout this action. DeSouza Decl. ¶ 2.

Case 0:22-cv-61992-RAR Document 71 Entered on FLSD Docket 07/01/2024 Page 1 of 20
Page 2 of 20

The FAC sets forth a single cause of action for breach of contract concerning alleged 

breaches of a Production and Supply Agreement (“Agreement”), [ECF No. 18] at 11–18, between

Plaintiff and Defendant. See generally FAC. Plaintiff operates on an affiliate marketing model 

and generally sells branded products for detoxification, immune system support, and over-thecounter pain relievers. FAC ¶ 6. Defendant is in the business of manufacturing, sourcing, 

contracting, packaging, and providing other miscellaneous services related to the production of 

products for its customers and clients. FAC ¶ 7. On or about March 1, 2022—Plaintiff as client 

and Defendant as manufacturer—entered into an Agreement whereby Defendant agreed to produce 

and/or manufacture certain products as per the terms and conditions specified in the Agreement. 

FAC ¶ 8. The specific product contemplated by the Agreement was spherical silver nanoparticles 

in deionized water. FAC ¶ 9. The Agreement further provided that Plaintiff had a right of first 

refusal for any and all new products developed by Defendant:

Future Products and Product Development. In addition, 

Manufacturer shall grant Avini Health Corporation the right of first 

refusal for any and all new products (the “New Products”) for 

consideration in the Territory through the Authorized Channel of 

Trade. Avini Health Corporation will be given a maximum period 

of thirty (30) days to review the New Products before other potential 

customers are solicited. If New Products are accepted for 

distribution by the Client, an Amended Production and Supply 

Agreement will be created.

FAC ¶ 10; Agreement at 12. As alleged in the FAC, the right of first refusal was material to 

Plaintiff’s entry into the Agreement, and it was specifically discussed with Biogenus’s principal, 

Mr. Gary Samuelson (“Samuelson”), prior to the Agreement’s execution. FAC ¶ 11. According 

to the FAC, prior to the parties entering into the Agreement, Samuelson had represented to Plaintiff

that he was instrumental in the development of the “REDOX Cell Signaling Supplement” for 

ASEA, a privately owned international direct selling and multi-level marketing company 

headquartered in Utah. FAC ¶ 12. The FAC further alleges that Mr. Samuelson further represented

Case 0:22-cv-61992-RAR Document 71 Entered on FLSD Docket 07/01/2024 Page 2 of 20
Page 3 of 20

that, prior to the execution of the Agreement, he was the key person in developing ASEA’s 

REDOX product. FAC ¶ 14. Plaintiff estimated that ASEA does approximately $180 million in 

sales of, and $60 million in profit for, the REDOX product on an annual basis. FAC ¶ 15. Around 

the time the parties executed the Agreement, Mr. Samuelson represented to Plaintiff that he was 

working on a new version of the REDOX product that he helped formulate and that this newer 

version was supposed to work in a 2 oz. concentrated spray, making it superior to ASEA’s product,

which was sold in a 32 oz. bottle. FAC ¶ 16. According to the FAC, Mr. Samuelson specifically 

stated to Plaintiff that once his product was fully developed, it would be offered to Plaintiff under 

the terms of their existing Agreement. See FAC ¶ 17.

On July 8, 2022, Mr. Samuelson and his wife Iris attended a dinner for Plaintiff’s

distributors and affiliates. FAC ¶ 20. At the dinner, Plaintiff alleges that Mr. Samuelson and his 

wife were seen coming from and going to their car and selling and giving out bottles of Defendant’s 

new REDOX product to Plaintiff’s distributors and affiliates. FAC ¶ 21. Prior to this however,

Mr. Samuelson had represented to Plaintiff that the product was not yet ready. See FAC ¶ 21. Mr. 

Samuelson and his wife also made multiple representations at the dinner that the product would 

soon be offered by Plaintiff for distribution. FAC ¶ 21. The next day, on July 9, 2022, Plaintiff

held a regional meeting with its distributors and affiliates in West Jordan, Utah. FAC ¶ 18. After

the meeting, Plaintiff’s representatives met Mr. Samuelson in a hotel room, where Mr. Samuelson

stated that he did not yet have the newer REDOX product ready for distribution. FAC ¶ 19. 

According to the FAC, Mr. Samuelson had repeated this statement several times since the parties 

executed the Agreement on March 1, 2022 until the July 9, 2022 meeting. See FAC ¶ 19. These 

representations were contrary to the statements made to Plaintiff’s distributors and affiliates at the 

July 8, 2022 dinner. FAC ¶ 21.

Case 0:22-cv-61992-RAR Document 71 Entered on FLSD Docket 07/01/2024 Page 3 of 20
Page 4 of 20

After the July 9, 2022 meeting, Samuelson and Iris hosted a dinner at their residence in 

Utah and told Plaintiff’s distributors that Samuelson had the improved REDOX product ready for 

sale and that the present guests could buy a bottle for $25 each. FAC ¶ 22. Mr. Samuelson also 

stated this price would be much lower than the price for which Plaintiff would later sell the product. 

FAC ¶ 22. Both at this dinner and subsequently, Defendant did in fact sell multiple bottles of his 

new improved REDOX product to multiple Plaintiff’s distributors at $25 each. FAC ¶ 23. The 

FAC also alleges that several distributors confirmed these sales. FAC ¶ 23. As of filing the FAC

on January 17, 2023, Plaintiff claims Defendant has continued to refuse to sell its new and

improved REDOX product to Plaintiff notwithstanding Defendant’s contractual obligations and

specific promises to do so. FAC ¶ 24. Moreover, Plaintiff specifically confronted Defendant via

its principal, Mr. Samuelson, concerning why Defendant was not supplying Plaintiff with its new 

REDOX product. FAC ¶ 25. Samuelson responded that he wanted Defendant to be the exclusive 

seller/supplier of the new product. FAC ¶ 25.

In addition to refusing to sell the new and improved REDOX product to Plaintiff, Plaintiff 

also alleges that Defendant further breached the parties’ Agreement by supplying poor quality 

nano-silver product. FAC ¶ 26. Specifically, Plaintiff alleges that Defendant had agreed, as part 

of the parties’ dealings, to supply Plaintiff silver product in 5-gallon tubs. FAC ¶ 27. Defendant

had provided written specifications before supplying the silver product, specifications indicating 

the product was supposed to be yellow in color and have 40 ppm of silver per bottle. FAC ¶ 27.

Relatedly, the Agreement references Nutra Pharma Corporation (“Nutra Pharma”) in 

various provisions. FAC ¶ 28. Prior to entering into the Agreement, Plaintiff and Defendant

agreed that purchase orders for the nano-silver product would be made by Nutra Pharma on 

Plaintiff’s behalf. See FAC ¶ 29. As discussed, and agreed by the parties, Plaintiff and Nutra 

Pharma maintained a business relationship whereby Nutra Pharma was to receive the silver product 

Case 0:22-cv-61992-RAR Document 71 Entered on FLSD Docket 07/01/2024 Page 4 of 20
Page 5 of 20

in the 5-gallon tubs, package the product in 4 oz. bottles, store the product pending purchase, and 

then ship the product to Plaintiff’s customers and distributors upon completion of an order. FAC 

¶ 30. Thus, Nutra Pharma was to function effectively as a drop-shipper for Plaintiff’s orders. FAC 

¶ 30.

In early February 2022, before the execution of the Agreement, Plaintiff submitted a 

purchase order to Defendant for 19 5-gallon tubs of silver product. FAC ¶ 31. Notably, Samuelson 

had indicated that the nano-silver product was supposed to be yellow in color and that a clear 

product indicated the silver had fallen out of its correct 7 nano sizing. FAC ¶ 32. The first order 

of nano-silver was yellow in color as Samuelson had indicated was proper. FAC ¶ 32. 

Accordingly, Plaintiff accepted the nano-silver and the accompanying Certificate of Accreditation 

sent by Defendant. FAC. ¶ 33. On March 30, 2022, Defendant emailed an invoice for the first 

shipment of silver product to Neil Roth (Plaintiff’s President and Chief Executive Officer) and Rik 

Deitsch (Nutra Pharma’s Chief Executive Officer). FAC ¶ 34. The invoice read as follows: 

“Please find the attached invoice. It is great being in business with you.” FAC ¶ 34. Plaintiff 

subsequently paid the invoice via wire transfer to Defendant. FAC ¶ 35. 

On or about May 5, 2022, after the Agreement had been signed, Plaintiff submitted, 

through Nutra Pharma, its first formal Purchase Order pursuant to the Agreement. See FAC ¶ 36

(emphasis in original). Defendant confirmed with Plaintiff that the purchase order was to follow 

the terms of the Agreement and conform with Defendant’s specifications for the silver product.

FAC ¶ 37. As with the first order, the product was shipped to Nutra Pharma for packaging and 

shipping to Plaintiff’s customers and distributors but paid for by Plaintiff. FAC ¶ 38. And as with 

the first shipment, Defendant emailed the invoice for the second shipment to both Neil Roth and 

Rik Deitsch, as reflected in a May 26, 2022 email: “Attached is the invoice and shipping 

information for 20 Containers of Silver Nanoparticles. It should arrive on Wednesday. It is being 

Case 0:22-cv-61992-RAR Document 71 Entered on FLSD Docket 07/01/2024 Page 5 of 20
Page 6 of 20

picked up today at 3pm MST.” FAC ¶ 39. However, the silver product in the second shipment

began to turn clear almost immediately after Plaintiff received it, which Plaintiff claims indicated

a major instability in the product. FAC ¶ 40. Plaintiff tested the product and discovered there was 

less than 1 ppm of silver per bottle, far below the specified 40 ppm per bottle as indicated in 

Defendant’s Certificate of Accreditation. FAC ¶ 41. 

As a result, Plaintiff was required to pull back 496 packaged bottles in addition to 

approximately 15 of the mostly unopened tubs. FAC ¶ 42. This cost Plaintiff $21,000.00 in outof-pocket costs and approximately $217,000.00 in lost sales during the 2022 calendar year. FAC

¶ 43. Plaintiff could not source replacement silver product for a period of several months and 

incurred lost sales in the amount of approximately $217,000 (retail of $75.00 per unit multiplied 

by 2,900 units). FAC ¶ 43; Roth Decl. ¶ 41. This resulted in around $184,000.00 in lost profits for 

Plaintiff. Roth Decl. ¶ 41. Plaintiff had buyers for the nano-silver product who had committed to 

purchase the aforementioned 2,900 units at the $75.00 retail price. Roth Decl. ¶ 42. Plaintiff could 

not fulfill those orders due to Defendant’s failure to provide conforming nano-silver product and 

had to obtain replacement product months after-the-fact, thereby losing the sales it had originally 

lined up. Roth Decl. ¶ 42.

As a result of both Defendant’s refusal to offer the new improved REDOX product and the 

poor quality of the supplied silver product, on August 4, 2022, Plaintiff sent a notice of default to 

Defendant. FAC ¶ 44. The parties were unable to resolve the dispute, and according to the FAC, 

Defendant continues to refuse to supply the new improved REDOX product and has not taken 

responsibility for the poor quality of the applied silver product. FAC ¶ 45. Plaintiff, by its 

Complaint, asserts through its action that Defendant’s breach of the Agreement between Avini and 

Biogenus caused Avini damages for which Avini is entitled to relief. See FAC ¶¶ 47–56.

Case 0:22-cv-61992-RAR Document 71 Entered on FLSD Docket 07/01/2024 Page 6 of 20
Page 7 of 20

B. Procedural Background

As noted above, Plaintiff initiated this action on October 25, 2022 by filing the Complaint, 

[ECF No. 1]. Pursuant to Fed. R. Civ. P. 4, Defendant was timely served with a summons and a 

copy of the Complaint on November 12, 2022. See Proof of Service, [ECF. No. 4]. On January 

17, 2023, Plaintiff filed the FAC. See [ECF No. 18]. On January 31, 2023, Defendant filed a 

Motion to Dismiss the FAC, [ECF No. 26], which the Court denied on March 17, 2023, [ECF No. 

36]. On March 31, 2023, Defendant filed an Answer and Affirmative Defenses to the FAC along 

with a Counterclaim against Plaintiff. [ECF No. 37]. On October 31, 2023, counsel for Defendant 

filed a Motion to Withdraw as Counsel (“Motion to Withdraw”). See [ECF No. 59]. The Court 

granted the motion on the same day and set a November 30, 2023 deadline for Defendant to obtain 

new counsel (“Withdrawal Order”). See [ECF No. 61] at 2. Withdrawing counsel further certified 

service upon the Defendant of the Court’s Order granting the Motion to Withdraw. See [ECF No. 

62]. 

Defendant failed to timely comply with the deadline to obtain new counsel and otherwise 

ceased to defend itself in this action. Accordingly, on December 5, 2023, the Court entered an 

Order Directing Clerk to Enter Default, Requiring Motion for Default Final Judgment, and 

Dismissing Defendant’s Amended Counterclaim against Plaintiff (“Order”), [ECF No. 65]. The 

Order dismissed Defendant’s Amended Counterclaim and struck Defendant’s Answer and 

Affirmative Defenses for failure to comply with the Court’s October 31, 2023 Withdrawal Order. 

See generally Order. The Order also directed the Clerk to enter a Clerk’s Default against 

Defendant and directed Plaintiff to file a Motion for Default Final Judgment within 10 days of the 

Clerk’s Entry of Default. See Order at 2–3. The Clerk accordingly entered a Clerk’s Default 

against Defendant the same day. See [ECF No. 66]. On December 14, 2023, Plaintiff timely filed 

a Motion for Default Judgment. [ECF No. 67]. 

Case 0:22-cv-61992-RAR Document 71 Entered on FLSD Docket 07/01/2024 Page 7 of 20
Page 8 of 20

However, on February 6, 2024, the Court denied Plaintiff’s First Motion for Default 

Judgment without prejudice because of its failure to comply with the specific directives in the 

Order. [ECF No. 68]. Specifically, the Court determined that Plaintiff had failed to adequately 

comply with the Court’s December 5, 2023 Order by (1) failing to provide legal support concerning 

why it is entitled to reasonable attorneys’ fees and costs; (2) failing to provide legal support 

warranting its requested award of compensatory damages alongside both a preliminary injunction 

and specific performance; (3) failing to differentiate between the respective purposes of the 

preliminary injunction and specific performance it requests; and (4) failing to provide the proper 

accounting required to adjust the equities between the parties where both specific performance and 

breach of contract damages are to be awarded. See id. On April 19, 2024, Avini timely filed a 

Renewed Motion for Default Final Judgment Against Defendant. [ECF No. 70]. The Court now 

turns to that Motion.

LEGAL STANDARD

A party may apply to the court for a default judgment when the defendant fails to timely 

respond to a pleading. Fed. R. Civ. P. 55(b)(2). “A defendant, by his default, admits the plaintiff’s 

well-pleaded allegations of fact, is concluded on those facts by the judgment, and is barred from 

contesting on appeal the facts thus established.” Eagle Hosp. Physicians, LLC v. SRG Consulting, 

Inc., 561 F.3d 1298, 1307 (11th Cir. 2009) (cleaned up) (quoting Nishimatsu Const. Co. v. Houston 

Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)). However, conclusions of law are to be 

determined by the court. See Mierzwicki v. CAB Asset Mgmt., LLC, No. 14-61998, 2014 WL 

12488533, at *1 (S.D. Fla. Dec. 30, 2014). Therefore, a court may enter a default judgment only 

if there is a “sufficient basis to state a claim.” Id.

Case 0:22-cv-61992-RAR Document 71 Entered on FLSD Docket 07/01/2024 Page 8 of 20
Page 9 of 20

ANALYSIS

“Rule 55 of the Federal Rules of Civil Procedure establishes a two-step procedure for 

obtaining default judgment.” Federated Life Ins. Co. v. Fifth Third Bank, No. 2:14-cv-568-FtM38CM, 2015 WL 859393, at *1 (M.D. Fla. Feb. 27, 2015). First, the clerk of the court must enter 

a clerk’s default against a defendant that fails to plead or otherwise defend a lawsuit. Id.; see Fed. 

R. Civ. P. 55(a). Second, after receiving the clerk’s default, the court can enter a default judgment 

provided the defendant is not an infant or incompetent. Id.; Fed. R. Civ. P. 55(b)(2); see also 

Solaroll Shade & Shutter, Inc. v. Bio–Energy Sys., Inc., 803 F.2d 1130, 1134 (11th Cir. 1986)

(stating a default judgment may be entered “against a defendant who never appears or answers a 

complaint, for in such circumstances the case never has been placed at issue”). But “a[n] entry of 

a clerk’s default does not per se warrant an entry of default judgment. Rather, a court may enter a 

default judgment only if ‘the well-pleaded allegations in the complaint, which are taken as true 

due to the default, actually state a substantive cause of action and that there is a substantive, 

sufficient basis in the pleadings for the particular relief sought.’” Federated Life, 2015 WL 859393, 

at *2 (quoting Tyco Fire & Sec., LLC v. Alcocer, 218 F. App’x 860, 863 (11th Cir. 2007)). 

A. The Clerk’s Entry of Default

Both requirements of the two-step procedure explained above are clearly met here, as 

explained below. As to whether there was a valid Clerk’s Entry of Default, Defendant’s apparent 

abandonment of its desire to defend further against this lawsuit is confirmed by Defendant’s failure 

to respond to the Court’s October 31, 2023 Withdrawal Order after withdrawing counsel properly 

served it upon Defendant. See [ECF No. 62]. Second, Defendant is not a minor or incompetent; 

thus, the restrictions set forth in Rule 55(b)(2) do not apply. Third, as a Utah limited liability 

company rather than an individual, Defendant cannot be in the military service of the United States 

nor any of its allies. Thus, the requirements of the Servicemembers Civil Relief Act, 50 U.S.C. § 

Case 0:22-cv-61992-RAR Document 71 Entered on FLSD Docket 07/01/2024 Page 9 of 20
Page 10 of 20

3931, are inapplicable here. See FAC ¶ 2. Accordingly, the Clerk properly entered a valid Clerk’s 

Default against Defendant on December 4, 2023. See [ECF No. 66].

B. The Sufficiency of the FAC’s Allegations and Requested Relief

But that is not the last step on the circuitous path to final default judgment. As mentioned 

above, “a court may enter a default judgment only if the well-pleaded allegations in the complaint, 

which are taken as true due to the default, actually state a substantive cause of action and that there 

is a substantive, sufficient basis in the pleadings for the particular relief sought.” Federated Life, 

2015 WL 859393, at *2 (cleaned up). As discussed below, the FAC adequately states a cause of 

action for breach of contract.

1. Breach of Contract

In the FAC, Plaintiff adequately states a cause of action against Defendant as to its single 

count for breach of contract. See FAC ¶¶ 47–56. As a threshold matter, the Court notes that the 

parties’ Agreement specifies that Florida law governs in the event of an action to enforce or 

interpret it. Agreement ¶ 22. And to state “a breach of contract claim, Florida law requires the 

plaintiff to plead and establish: (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, 1272 

(11th Cir. 2009) (citing Friedman v. N.Y. Life Ins. Co., 985 So. 2d 56, 58 (Fla. 4th DCA 2008)).

Here, Plaintiff alleges—and Defendant admits by way of its default—that: (1) a valid 

contract exists between the parties; (2) Defendant’s breach was material; (3) and Plaintiff suffered 

damages as a result of Defendant’s breach. FAC ¶¶ 8, 10–11, 17–30, 40–46, 48–56. Specifically, 

Defendant is deemed to have admitted the following facts by its default: (1) on or about March 1, 

2022, Plaintiff and Defendant entered into a valid and binding Agreement whereby Defendant 

agreed to produce and/or manufacture certain products on the terms and conditions specified 

therein; (2) “[t]he Agreement is a binding, enforceable contract existing between Plaintiff and 

Case 0:22-cv-61992-RAR Document 71 Entered on FLSD Docket 07/01/2024 Page 10 of 20
Page 11 of 20

Defendant”; (3) “[t]he Agreement requires Defendant to manufacture/supply certain silver product 

meeting agreed-upon specifications”; (4) “[t]he Agreement further requires Defendant to offer its 

new/improved REDOX product to Plaintiff for purchase”; (5) “Defendant breached the Agreement 

by supplying approximately $21,000.00 of nano-silver product that failed to meet Defendant’s 

own specifications”; (6) “Defendant further breached the Agreement by failing to offer its 

new/improved REDOX product to Plaintiff for purchase”; (7) “[a]s a direct and proximate result 

of Defendant’s breaches of the Agreement, Plaintiff suffered substantial damages”; (8) “Plaintiff’s 

supply of non-conforming nano-silver product has caused Plaintiff to incur $21,000.00 in direct 

damages and $217,000.00 in lost sales (amounting to > $184,000.00 in lost profits)”; and (9) 

“Defendant’s breaches of Agreement are ongoing and have already caused and will continue to 

cause irreparable harm to Plaintiff.” FAC ¶¶ 8, 48, 50–55.

In summary, then, Plaintiff alleges breaches of two of the Agreement’s provisions—

Section 12, which required Defendant to supply nano-silver product in accordance with the 

specifications agreed by the parties, and Section 7, which provided Plaintiff a right of first refusal 

for any and all new products developed by Defendant. See Mot. at 12. Based on the above facts, 

all of which Defendant admits as a result of its default, the Court finds that there is sufficient basis 

in the FAC for compensatory damages. 

2. Remedies

a. Specific Performance

By its Motion, Plaintiff seeks specific performance of Section 7 of the Agreement, which 

provides for Plaintiff’s right of first refusal with respect to the new and improved REDOX product.

The equitable remedy of specific performance may be granted at the discretion of the Court when: 

(1) “the plaintiff is clearly entitled to it,” (2) “there is no adequate remedy at law,” and (3) “the 

judge believes justice requires it.” Boardwalk at Daytona Dev., LLC v. Paspalakis, 220 So. 3d 

Case 0:22-cv-61992-RAR Document 71 Entered on FLSD Docket 07/01/2024 Page 11 of 20
Page 12 of 20

457, 460–461 (Fla. 5th DCA 2016) (cleaned up) (quoting Castigliano v. O’Connor, 911 So. 2d 

145, 148 (Fla. 3d DCA 2005)). “Florida law recognizes the right to enforce specifically a contract

only for the sale of real property or for such personal property that is of a unique character and 

value, such as an antique. Barnes v. Diamond Aircraft Indus., Inc., 499 F. Supp. 2d 1311, 1319 

(S.D. Fla. 2007) (citing Clements v. Leonard, 70 So. 2d 840, 842 (Fla. 1954); Mangus v. Porter,

276 So. 2d 250, 251 (Fla. 3d DCA 1973)). “Generally speaking, this right is not available for 

contracts involving personal property where the good is commonly manufactured.” Id. (citing

DiabloSport, LLC v. Granatelli Motor Sports, Inc., No. 605CV312ORL31DAB, 2005 WL

2465019, at *2 (M.D. Fla. Oct. 6, 2005) (finding no specific performance where the plaintiff did 

not allege that “a commonly available manufactured good” was unique or that its value was

difficult to calculate)). 

The Court declines to award specific performance because Plaintiff has failed to adequately

demonstrate it lacks an adequate remedy at law. The Court arrives at this conclusion for three

separate reasons. First, Plaintiff has inadequately demonstrated that the REDOX product is in fact 

unique such that specific performance is warranted. As noted above, specific performance is 

generally only available where a good is “unique” and not for “contracts involving personal 

property where the good is commonly manufactured.” Barnes, 499 F. Supp. 2d at 1319. Plaintiff’s

Motion claims that “Plaintiff cannot obtain the new/improved product elsewhere in the market as

Defendant exclusively controls the distribution of such.” Mot. at 15. The Court notes, however, 

that the allegations contained in the FAC rather than the statements in Plaintiff’s Motion govern 

the Court’s pleading-sufficiency-and-remedies analysis. And the FAC specifically contradicts

Plaintiff’s representation that the REDOX product is sufficiently unique to warrant specific

performance. 

Case 0:22-cv-61992-RAR Document 71 Entered on FLSD Docket 07/01/2024 Page 12 of 20
Page 13 of 20

Specifically, the FAC states that “[a]round the time the Agreement was executed, Mr.

Samuelson represented that he had been working on a new version of the REDOX product that he 

helped to formulate. The product was supposed to be a newer version that can work in a 2 oz

concentrated spray (ASEA’s product is sole [sic] in a 32 oz bottle) that was superior to the ASEA

product.” FAC ¶ 16 (emphasis added). The fact that Plaintiff considers Samuelson’s product to

be superior, even if true, does not, without more, make it unique. Indeed, the FAC all but confirms

that Samuelson’s product is not unique, as there is a comparable product on the market, namely, 

ASEA’s product, which comes in the 32 oz bottle. See Barnes, 499 F. Supp. 2d at 1319 (refusing

to grant specific performance where “[Plaintiff] has not denied that other manufacturers are

currently producing similar aircraft in the ‘very light jet’ category.”). Thus, by Plaintiff’s own

allegations, there is evidently an alternative to Samuelson’s product on the market. Though 

Plaintiff might prefer Defendant’s version of the product, and though it might indeed be improved 

given its concentrated formula and smaller bottle, these facts are insufficient for the Court to

conclude that the product is sufficiently unique to warrant the extraordinary remedy of specific

performance. Accordingly, the Court cannot conclude that Plaintiff lacks an adequate remedy at

law to compensate it for Defendant’s breach of Section 7. 

Second, and relatedly, although Plaintiff’s Motion claims that Plaintiff’s damages related

to Defendant’s breach of Section 7 are difficult to quantify, the Motion nonetheless states that 

“Plaintiff adduced . . . that Defendant sold at least 200 bottles of the REDOX product to Plaintiff’s 

own distributors at a price of $25.00/bottle, resulting in definitive damages of $5,000.00.” Mot. 

at 13. Plaintiff has thus conceded an adequate remedy at law in the form of a reasonable damages

estimate resulting from the breach of Section 7. That Plaintiff would prefer the remedy of specific 

performance does not alter the Court’s conclusion that such a remedy is unwarranted on the FAC’s 

alleged facts. Thus, for this reason as well, the Court cannot conclude that there is no adequate 

Case 0:22-cv-61992-RAR Document 71 Entered on FLSD Docket 07/01/2024 Page 13 of 20
Page 14 of 20

remedy at law for Defendant’s breach of Section 7. Based on the foregoing analysis, the Court 

declines to grant specific performance for Defendant’s breach of Section 7. 

b. Permanent Injunction

Plaintiff also requests from the Court a permanent injunction concerning Defendant’s 

breach of the right-of-refusal provision in Section 7. Mot. at 15–17. Specifically, Plaintiff seeks 

a permanent injunction against Defendant prohibiting it from selling, distributing, and 

manufacturing any new product, including the REDOX product, without first offering Plaintiff a 

right of first refusal. Mot. at 16. A plaintiff seeking an injunction must show: “(1) that it has 

suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are 

inadequate to compensate for that injury; (3) that, considering the balance of hardships between 

the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would 

not be disserved by a permanent injunction.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 

391 (2006). 

“Under Florida law, an injunction against the breach of a contract is a negative decree of 

specific performance of the agreement, and the general rule in such cases is that the court’s power 

to grant such relief is governed by the same rules that govern its power to grant an affirmative

decree of specific performance.” DiabloSport, LLC, 2005 WL 2465019, at *1 (citing Fla.Jur.2d 

Specific Performance § 158 (2005)). Florida law recognizes the right to specifically enforce 

certain contracts, such as contracts for the sale of real property. See Clements, 70 So. 2d at 842. 

“Generally speaking, however, this right is not available for contracts involving personal property, 

particularly where the court would be required to supervise performance of the contract.” 

DiabloSport, LLC, 2005 WL 2465019, at *1 (citing Mayor’s Jewelers, Inc. v. State of Cal. Public

Employees’ Retirement System, Inc., 685 So. 2d 904, 905 (Fla. 4th DCA 1996)). “Because the 

damages resulting from a breach are generally purely economic, the injured party possesses an

Case 0:22-cv-61992-RAR Document 71 Entered on FLSD Docket 07/01/2024 Page 14 of 20
Page 15 of 20

adequate remedy at law, which precludes the granting of injunctive relief in such cases.” Id. (citing

Mayor’s Jewelers, Inc., 685 So. 2d at 905). “However, where there is no adequate remedy at law,

and where the personal property is of a unique character and value, Florida courts will grant 

specific performance of a contract involving personal property. Id. (citing Mangus, 276 So. 2d at

251 n.1). 

The Court declines to issue a permanent injunction for several reasons. First, as explained 

above, the Court has already determined that the product at issue is insufficiently unique such that 

there is no adequate remedy at law. The same conclusion applies with equal force here. And while 

Plaintiff’s Motion concedes that specific performance and a permanent injunction in the breachof-contract context are closely related, Mot. at 15–16, Plaintiff nonetheless claims “[t]he specific 

performance sought by Plaintiff (that Defendant offer a right of first refusal to Plaintiff with respect 

to new products) differs slightly from the injunctive relief sought by Plaintiff (that Defendant be 

prohibited from selling, distributing, manufacturing any new product, including the REDOX 

product, without first offering Plaintiff a right of first refusal). Mot. at 16. 

Confusingly however, in the earlier section of Plaintiff’s Motion requesting specific 

performance, Plaintiff states “[t]he Court should thus require specific performance of § 7 of the 

Agreement, both with respect to Defendant’s REDOX product and any other ‘new’ product it has 

developed or develops in the future.” Mot. at 15. This statement appears to directly contradict 

Plaintiff’s proffered distinction between the two remedies in the section of Plaintiff’s Motion 

requesting a permanent injunction. Though it remains unclear to the Court whether and how the 

specific-performance and permanent-injunctive remedies Plaintiff requests are indeed distinct 

given the Motion’s inconsistencies, in light of the Court’s conclusion that the REDOX product is 

not sufficiently unique to warrant the extraordinary remedy of specific performance, the Court has 

no trouble reaching the same conclusion in the permanent-injunction context that it did in the 

Case 0:22-cv-61992-RAR Document 71 Entered on FLSD Docket 07/01/2024 Page 15 of 20
Page 16 of 20

specific-performance context. Indeed, as already explained above, there does appear to be an 

adequate remedy at law: the $5,000.00 in damages Plaintiff estimates resulted from Defendant’s

breach of Section 7.

Second, Plaintiff’s briefing concerning its entitlement to a preliminary injunction is 

woefully insufficient. For example, Plaintiff dedicates only half a page—just a part of one 

paragraph—to arguing for a permanent injunction, a drastic and extraordinary form of relief that 

requires burdensome supervision by the courts. Plaintiff dedicates just one sentence to each of the 

required elements, e.g., “[t]he threatened injury outweighs any damages to Defendant given that 

such injunctive relief only forces Defendant to comply with its contractual obligations.” Mot. at 

16. Third, the Court notes that the Agreement was dated March 1, 2022 and was set to continue 

for a period of two years unless renewed by the parties for an additional two years. See Agreement 

¶ 1. Accordingly, the Agreement expired on March 1, 2024. Given the parties’ dispute, it seems 

unlikely to the Court that the parties would have renewed their Agreement. Finally, this Motion 

represents Plaintiff’s second failure to adequately justify its request for specific performance, a 

permanent injunction, and compensatory damages. The Court already catalogued the First 

Motion’s deficiencies and provided specific guidance to Plaintiff concerning the need to clarify 

the contours and legal justification for the equitable relief sought in its Renewed Motion. See 

[ECF No. 68]. Plaintiff has again failed to do so. Accordingly, Plaintiff’s request for a permanent 

injunction is denied.

c. Compensatory Damages

i. Failure to Supply Conforming Nano-silver Product 

Plaintiff seeks compensatory damages in the amount of $205,000.00. This total amount 

consists of $21,000.00 paid by Plaintiff to Defendant for non-conforming goods (the nano-silver 

product) and $184,000.00 in lost profits due to Defendant’s breach. FAC ¶ 54; Mot. at 12; Roth 

Case 0:22-cv-61992-RAR Document 71 Entered on FLSD Docket 07/01/2024 Page 16 of 20
Page 17 of 20

Decl. ¶¶ 40–41. Defendant admits these damages calculations by virtue of its default. Therefore, 

Plaintiff is entitled to an award of $205,000.00 in compensatory damages with respect to 

Defendant’s breach of Section 12 stemming from Defendant’s failure to supply conforming nanosilver product.

ii. Failure to Offer First Right of Refusal

Plaintiff also includes a damages calculation of $5,000.00 related to Defendant’s breach of 

Section 7 of the Agreement. Mot. at 13; Roth Decl. ¶ 20; see also FAC ¶¶ 22–23. Plaintiff’s 

estimate is based on Plaintiff’s conclusion that Defendant sold at least 200 bottles of the REDOX 

product to Plaintiff’s own distributors at a price of $25.00/bottle, resulting in definitive damages 

of $5,000.00. Mot. at 13 (citing Roth Decl. ¶ 20). The Court accordingly awards $5,000.00 in 

compensatory damages related to Defendant’s breach of Section 7 of the Agreement.

d. Costs and Attorneys’ Fees

Lastly, Plaintiff seeks an award of attorneys’ fees in the amount of $42,355.00 and costs in 

the amount of $1,985.75 for a total cost and fees award of $44,340.75. As already noted, in support 

of its request for fees and costs, Plaintiff has attached to its Motion a declaration from Plaintiff’s 

attorney Daniel DeSouza of the law firm DeSouza Law, P.A. See DeSouza Decl. The declaration 

is accompanied by timesheets describing the work performed, the time expended, and the costs 

incurred. DeSouza Decl. at 7–14.

Under Florida law, “attorney’s fees may only be awarded by a court pursuant to an entitling 

statute or an agreement of the parties.” Dade County v. Pena, 664 So. 2d 959, 960 (Fla. 1995). 

The test to determine the prevailing party “is whether the party ‘succeeded on any significant issue 

in litigation which achieves some of the benefit the parties sought in bringing the suit.’” Moritz v. 

Hoyt Enters., Inc., 604 So. 2d 807, 809–10 (Fla. 1992) (alterations accepted) (quoting Hensley v. 

Eckerhart, 461 U.S. 424, 433 (1983)). 

Case 0:22-cv-61992-RAR Document 71 Entered on FLSD Docket 07/01/2024 Page 17 of 20
Page 18 of 20

Here, Section 23 of the Agreement allows for the prevailing party to recover reasonable

attorneys’ fees and costs incurred in any suit brought to enforce the Agreement. Moreover, the 

entry of default judgment against a defendant renders the Plaintiff the prevailing party. See Simon 

v. Leaderscape, LLC, 565 F. Supp. 2d 1332, 1334 (S.D. Fla. 2008). The Court has reviewed the 

declaration of Avini’s counsel filed together with the Motion and finds the attached declaration 

adequately supports Plaintiff’s requested awards of attorneys’ fees and costs.

i. Costs

As to costs, the Court awards the Motion’s full request for $1,985.75 in taxable costs

against Defendant. Mot. at 6. These costs consist of the filing fee, service of the Complaint, 

service of a subpoena, and deposition transcripts with respect to the depositions of Gary Samuelson 

(Defendant’s principal), Douglas Dickey, and Erik Deitsch (both officers of Plaintiff whose 

depositions were taken by Defendant). See Mot. at 6; DeSouza Decl. at 10–14.

ii. Attorneys’ Fees

As discussed above, the Court already concluded Plaintiff is entitled to attorneys’ fees

based upon Section 23 of the Agreement. The Court now considers the reasonableness of 

Plaintiff’s requested fee amount and awards Plaintiff’s full attorneys’ fees request of $42,355.00. 

The “starting point for determining the amount of a reasonable fee is the number of hours 

reasonably expended on the litigation multiplied by a reasonable hourly rate,” known as the 

lodestar figure. Hensley, 461 U.S. at 433. “A reasonable hourly rate is the prevailing market rate 

in the relevant legal community for similar services by lawyers of reasonably comparable skills, 

experience, and reputation.” Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1299 

(11th Cir. 1988). To determine the prevailing market rate, courts often consider “the attorney’s 

customary fee, the skill required to perform the legal services, the attorney’s experience, reputation 

and ability, the time constraints involved, preclusion of other employment, contingency, the 

Case 0:22-cv-61992-RAR Document 71 Entered on FLSD Docket 07/01/2024 Page 18 of 20
Page 19 of 20

undesirability of the case, the attorney’s relationship to the client, and awards in similar cases.” 

Mallory v. Harkness, 923 F. Supp. 1546, 1555 (S.D. Fla. 1996). The party seeking an award of 

fees bears the burden of documenting and substantiating the number of hours and hourly rate. See 

Hensley, 461 U.S. at 433. 

The Court has performed the lodestar analysis and finds the requested fee amount here to 

be reasonable. Specifically, the Court finds that Plaintiff’s counsel reasonably expended 94.7 

hours in connection with pursuing this matter. The Court further finds that $450.00 is a reasonable 

hourly rate for Plaintiff’s counsel, Daniel DeSouza, given the relative complexity of the matter, 

the results obtained, and the experience of Plaintiff’s counsel. See, e.g., Afford. Aerial 

Photography, Inc. v. Elegance Transportation, Inc., No. 6:21-CV-1166-CEM-LHP, 2022 WL 

2306182, at *12 (M.D. Fla. Feb. 23, 2022), adopted by, 2022 WL 2306516 (M.D. Fla. Mar. 14, 

2022) (finding Plaintiff’s counsel’s $450.00/hour rate reasonable); Shelton v. Liberty Mut. Fire 

Ins. Co., No. 8:12-CV-2064-T-30AEP, 2014 WL 631886, at *3 (M.D. Fla. Feb. 18, 2014) (finding 

$425.00 per hour reasonable for AV-rated lead attorney who “has been practicing for nearly 17 

years”); ADT LLC, v. Security Networks, LLC, No. 12-81120, 2018 WL 1796269, at *9 (S.D. Fla. 

Jan. 11, 2018) (finding rates of $425.00–$440.00 per hour reasonable for attorney with over 15 

years’ experience, admitted to multiple states, and who practices complex commercial litigation); 

Bork v. Tran Huong Quynh, No. 2:19-CV-354FTM38MRM, 2020 WL 6366189, at *2 (M.D. Fla. 

Oct. 14, 2020) (hourly rate of $450.00 per hour reasonable for 10-year attorney). 

Accordingly, the Court awards Plaintiff attorneys’ fees in the amount of $42,355.00. 

CONCLUSION

For the foregoing reasons, Plaintiff is entitled to the entry of default final judgment. 

Accordingly, it is hereby ORDERED AND ADJUDGED as follows:

Case 0:22-cv-61992-RAR Document 71 Entered on FLSD Docket 07/01/2024 Page 19 of 20
Page 20 of 20

1. Plaintiff’s Motion for Default Final Judgment, [ECF No. 70], is GRANTED IN 

PART. Default Final Judgment shall be entered by separate order.

2. Plaintiff shall recover from Defendant $249,340.75, consisting of $205,000.00 in

compensatory damages, $1,985.75 in costs, and $42,355.00 in attorneys’ fees.

DONE AND ORDERED in Miami, Florida this 1st day of July, 2024. 

 

RODOLFO A. RUIZ II

UNITED STATES DISTRICT JUDGE

 

Case 0:22-cv-61992-RAR Document 71 Entered on FLSD Docket 07/01/2024 Page 20 of 20