[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-10194

Non-Argument Calendar

____________________

In Re: HALLUCINATION MEDIA, LLC,

Debtor.

________________________________________________

HALLUCINATION MEDIA, LLC, 

Plaintiff-Appellant,

versus

THE RITZ YBOR, LLC, 

N.C.J. INVESTMENT COMPANY, 

JOE CAPITANO, JR., 

AMPHITHEATRE EVENTS, LLC, 

JOHN A. SANTARO, 

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2 Opinion of the Court 24-10194

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:22-cv-00564-SDM

____________________

Before WILSON, BRANCH, and LUCK, Circuit Judges.

PER CURIAM:

In 2013, Plaintiff Hallucination Media, LLC 

(“Hallucination”) began contract discussions with Defendant Ritz 

Ybor (“the Ritz”) for Hallucination to promote and produce club 

nights at the Ritz special events venue. Although the parties 

contest whether an agreement was ever reached, it is undisputed 

that Hallucination and the Ritz developed a business relationship 

whereby Hallucination promoted and produced club nights at the 

Ritz on Friday nights and some Saturday nights from August 2013 

until May 2016, when the Ritz allegedly breached the agreement. 

Around the time that the relationship between Hallucination and 

the Ritz ended, Amphitheatre LLC (“Amphitheatre”)—a 

competitor to Hallucination—executed a three-year lease 

agreement to hold events at the Ritz after a fire destroyed its 

former venue. 

After filing for Chapter 11 bankruptcy, Hallucination 

brought an adversarial proceeding against the Ritz, its managing 

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24-10194 Opinion of the Court 3

member Joe Capitano, and owner N.C.J. Investment Company

(“NCJ”); as well as Amphitheatre and its owner John Santoro. 

Hallucination sought damages against (1) the Ritz and NCJ for 

breach of a partnership agreement (Count I) and breach of a right 

of first refusal (Count II); (2) the Ritz, NCJ, and Capitano for selfhelp eviction in violation of Florida Statutes § 83.05 (Count III); (3) 

Capitano, Amphitheatre, and Santoro for tortious interference 

with contracts and business relationships (Count IV); and (4) the 

Ritz, NCJ, and Capitano for fraudulent inducement (Count V). 

The bankruptcy court granted summary judgment in favor of 

defendants on all claims, which the district court affirmed. 

On appeal, Hallucination argues that the bankruptcy court 

erred by (1) granting summary judgment based on affirmative 

defenses and arguments it argues were never made by defendants, 

(2) misapplying the law on statute of frauds and competition 

privilege, and (3) denying its motions to reconsider.1 After careful 

review, we affirm. 

I. Background

The Ritz, with Capitano as its managing member, operated

a special events venue in a building owned by NCJ. In 2013, the 

Ritz, NCJ, and Capitano (collectively “the Ritz defendants”) began 

discussions with Hallucination and its managing members, Bryan 

Nichols and Steve McClure, about entering into an agreement for 

1 In the interest of clarity, the issues on appeal have been reorganized from the 

format presented in Hallucination’s brief. 

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Hallucination to promote and produce club nights at the Ritz. 

While it is undisputed that Hallucination and the Ritz developed a 

business relationship whereby Hallucination promoted and 

produced club nights at the Ritz on Friday nights and some 

Saturday nights between August 2013 and May 2016, the parties 

dispute the nature of the relationship, and whether an enforceable 

agreement was ever reached. The parties also dispute whether 

Amphitheatre—a competitor to Hallucination who executed a 

lease with the Ritz around the time that the Ritz allegedly breached 

the agreement with Hallucination—tortiously interfered with the 

relationship between the Ritz and Hallucination. The evidence 

pertaining to these disputes will be summarized in turn. 

A. E-mails between the Ritz and Hallucination

The main evidence of the relationship between the Ritz and 

Hallucination is a series of e-mails between the parties. In May 

2013, Stephanie Petrucelli, an agent for the Ritz, e-mailed 

Hallucination setting out “some talking points from our last sit 

down.” The e-mail then discussed the Ritz’s commitment to 

capital improvements, proposed a 3-year term consisting of Friday 

and Saturday nights only, attached a financial pro forma projecting 

the split of the revenue, and listed topics that the parties needed to 

discuss further. Later that day, Hallucination responded, in part, 

that there were a few things relating to specifics of the costs and 

the format of the club nights that “were very concerning to 

[Hallucination.]” 

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Two weeks later, in June 2013, Petrucelli e-mailed 

Hallucination with “a few edits to some of our discussion so we 

can take the next step to develop a document. I know there is some 

language needed from you guys....I highlighted those areas in red.

Let me know your thoughts.” The edits included a placeholder 

next to the 3-year term, stating that Hallucination was to provide 

language regarding options to extend the lease or a right of first 

refusal, and a comment that Hallucination was to draft language 

dealing with incidents or nuisance. A few days later, after not 

hearing from Hallucination, Petrucelli sent a follow-up e-mail 

stating that she “[j]ust wanted to check in to see where you are on 

the language that we need from your team to move forward to 

finalize an agreement.” 

The next day, Hallucination responded with several changes,

and noted that “[w]e would like to set up a meeting with everyone 

tomorrow, if possible . . . so we are all on the same page.” Later 

that day, Petrucelli responded with responses to the changes. In 

relevant part, she stated that she understood that Hallucination 

wanted to be protected beyond the proposed 3-year term of the 

potential lease, and that “[i]t seems the most prudent way to do this 

would be for certain first right of refusal regarding club nights etc 

at the end of the term[.]” Ultimately, the e-mail stated that 

Capitano, the managing member of the Ritz, “fe[lt] confident that 

we will get aligned and strike an agreement that is favorable for us 

all,” and that they would set up a call to discuss the comments later 

that day or the next day. This was the last written communication

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between the parties prior to the alleged onset date of the 

agreement.

It appears that, over a year later, in September 2014, the 

parties still disagreed on the exclusivity of Hallucination’s rights on 

Saturday nights. Hallucination e-mailed Petrucelli that “[w]e 

cannot be exclusive for just one night guaranteed and have a noncompete for 3 years. . . . [W]e rely on a minimum of two nights in 

this industry in order to succeed[.]” Thus, Hallucination proposed 

the following exclusivity language for Saturday nights:

“Hallucination shall be granted the right to operate . . . on Saturday 

Nights.” Petrucelli responded that “[w]e appreciate your creative 

suggestions for Saturday, however, we are not going [to] get there 

at this time.” The next day, Hallucination responded that “[w]e are 

clearly in a stalemate with the Saturday issue.” 

Despite the disagreement over terms, Hallucination and the 

Ritz were able to conduct business together, with Hallucination 

holding events at the Ritz between August 2013 and May 2016. But 

eventually, the disagreements proved insurmountable. On January 

22, 2016, Hallucination sent Capitano a strongly worded e-mail 

suggesting that the relationship was not running smoothly. 

Hallucination stated that the Ritz had not been honoring various 

aspects of the “agreement” that they had reached. Hallucination 

ended the e-mail by stating that “[e]ither you choose to uphold 

your end of the bargain under the terms which we all agreed upon, 

or you choose to break the agreement.” Capitano e-mailed 

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Hallucination that “I think it is best for us to set a [meeting] for us 

to figure [out] a plan to sever[] our relationship.” 

On May 13, 2016, Capitano e-mailed Hallucination that 

Hallucination’s “tenancy by oral agreement is terminated as of 

May 13, 2016,” that Hallucination had “until noon on May 14th to 

remove its property,” and that Hallucination “d[id] not have a right 

of first refusal[.]” Additionally, Capitano stated that he “ha[d] no 

legal obligation” to Hallucination because there was no written 

lease; rather, Capitano stated that Hallucination “operated and paid 

weekly and your oral tenancy was week to week.” 

B. Amphitheatre and the Ritz reach an agreement 

On April 28, 2016, Amphitheatre entered an initial 

“Promoter Space Rental Agreement,” with the Ritz to hold events 

at the venue for several dates in May 2016. Thereafter, the parties 

executed a three-year lease for Amphitheatre to hold events at the 

Ritz. Discussions between Amphitheatre and Ritz commenced 

after a fire destroyed Amphitheatre’s previous venue in April 2016. 

Because “[t]here were a number of events already booked to take 

place at the Amphitheatre, and . . . a number of staff members . . . 

relied upon [Amphitheatre] for their livelihood,” Santoro (the 

owner of Amphitheatre) immediately “began searching for suitable 

venues to hold . . . events.” Santoro had meetings with Capitano, 

in hopes of moving Amphitheatre’s scheduled events to the Ritz. 

During conversations with the Ritz, “it was [Santoro’s] 

understanding that Hallucinations Media did not have a lease or 

other contract, and was operating on a week to week basis,” and 

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that the Ritz “began contemplating termination of [the] 

relationship” in January 2016. 

C. Procedural History 

In May 2016, Hallucination filed a voluntary petition for 

relief under Chapter 11 of the United States Bankruptcy Code. 

After litigating the main bankruptcy case for nearly three years, 

Hallucination initiated the instant adversary proceeding against 

defendants in March 2019. Hallucination sought damages against 

the Ritz and NCJ for breach of a partnership agreement (Count I) 

and breach of a right of first refusal (Count II); the Ritz, NCJ, and 

Capitano for self-help eviction in violation of Florida Statute § 83.05 

(Count III); Capitano, Amphitheatre, and Santoro for tortious 

interference with contracts and business relationships (Count IV); 

and the Ritz, NCJ, and Capitano for fraudulent inducement (Count 

V). 

Ritz filed an answer, stating in pertinent part that “[t]he 

parties exchanged several emails, but never reached an 

agreement,” that “no joint venture or partnership was ever 

formed,” and, as an affirmative defense, that “Debtor had, at best, 

a license to conduct ‘club nights’ . . . during limited hours on Friday 

nights.” Amphitheatre and Santoro filed a separate answer, stating 

in pertinent part that neither “Amphitheater [n]or Santoro had 

knowledge of any of the alleged contracts and business 

relationships at any material time,” and, as an affirmative defense, 

that “Defendants were entitled to take the actions alleged to 

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protect their business interest and such actions are privileged and 

immune from liability for tortious interference.” 

The Ritz defendants and Amphitheatre defendants then filed 

separate motions for summary judgment. 

1. The Ritz defendants’ motions for summary judgment

Following a hearing on the motions for summary judgment

conducted before the close of discovery, the bankruptcy court 

granted in part and denied in part the Ritz defendants’ motion. As 

to Counts One and Two for breach of agreement and right of first 

refusal, the bankruptcy court denied the motion because “[t]he 

summary judgment record as it stands . . . does not clearly define 

the business relationship,” and “[w]ithout such clarity, it is difficult 

to determine whether the statute of frauds would bar Plaintiff’s 

claims.” The court, however, granted the motion as to Counts 

Three, Four, and Five. On Count Three, the court held that the 

Ritz defendants did not engage in self-help eviction because any 

alleged agreement, to the extent one existed, could not be 

characterized as a lease because Hallucination did not have a right 

of exclusive possession to the venue, and, therefore, the provisions 

of Fla. Stat. § 83.05 did not apply. On Count Four, the court held 

that Capitano could not engage in tortious interference with a 

business relationship because Capitano did not act in his individual 

capacity. And on Count Five, the court held “the application of 

Florida’s independent tort doctrine” barred Hallucination’s

fraudulent inducement claim. Hallucination filed a motion for 

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reconsideration under Federal Rule of Civil Procedure 59 on these 

counts, which the court denied. 

After the discovery period progressed and additional 

evidence was submitted, the Ritz defendants filed an amended and 

renewed motion for summary judgment on Counts One and Two, 

which the court granted. As to Count One, the court held that “the 

[e-mail] communications between the parties are insufficient to 

create a material issue of fact regarding the essential terms of a 

three-year partnership agreement.” While those documents 

showed that the parties were working toward an agreement, “they 

never got beyond the outline” of such an agreement. Indeed, the 

e-mails demonstrated that Ritz and Hallucination did not even 

“establish agreement to the material terms of a promotion 

agreement.” And as to Count Two, the court held that 

“Hallucination does not point to any writing where Ritz or NCJ 

actually agreed to [a] right of first refusal.” 

2. Amphitheatre defendants’ motion

The bankruptcy court also granted the Amphitheatre 

defendants’ motion. The court held that Hallucination’s claim 

against the Amphitheatre defendants (Count Four—tortious 

interference with a business contract) failed because of the defense 

of “competition privilege,” which was properly raised by 

defendants. Hallucination filed a motion for reconsideration under 

Rule 59, which was denied. 

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3. Appeal 

Hallucination appealed these rulings to the district court, 

which affirmed on all counts. Hallucination then filed the instant 

appeal. 

II. Standard of Review

In a bankruptcy case, we sit “as a second court of review and 

thus examine[] independently the factual and legal determinations 

of the bankruptcy court and employ[] the same standards of review 

as the district court.” In re Brown, 742 F.3d 1309, 1315 (11th Cir. 

2014) (quotations omitted). “Furthermore, when a district court 

affirms a bankruptcy court’s order, as the district court did here, we 

review the bankruptcy court’s decision. Id. “We review the 

bankruptcy court’s factual findings for clear error and its legal 

conclusions de novo.” Id. (quotations omitted). And we review

“[t]he denial of a motion for reconsideration . . . for abuse of 

discretion.” Sanderlin v. Seminole Tribe of Fla., 243 F.3d 1282, 1285 

(11th Cir. 2001). 

III. Discussion 

On appeal, Hallucination argues that the bankruptcy court 

erred by (1) granting summary judgment based on affirmative 

defenses and arguments that were allegedly never made by 

defendants, (2) misapplying the law on the statute of frauds and 

competition privilege, and (3) denying its motions to reconsider. 

After careful review, we affirm.

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A. Unpleaded affirmative defenses

Hallucination argues that the bankruptcy court erred by 

entering summary judgment in favor of defendants based on the 

(1) statute of frauds and (2) competition privilege because they

were “unpleaded affirmative defenses raised for the first time in 

their motions for summary judgment.” 

Federal Rule of Civil Procedure (8)(c) provides that, in 

general, “[i]n responding to a pleading, a party must affirmatively 

state any avoidance or affirmative defense.” “However, the liberal 

pleading rules established by the Federal Rules of Civil Procedure 

apply to the pleading of affirmative defenses. We must avoid 

hypertechnicality in pleading requirements and focus, instead, on 

enforcing the actual purpose of the rule,” which “is simply to 

guarantee that the opposing party has notice of any additional issue 

that may be raised at trial so that he or she is prepared to properly 

litigate it.” Hassan v. U.S. Postal Serv., 842 F.2d 260, 263 (11th Cir. 

1988). “When a plaintiff has notice that an affirmative defense will 

be raised at trial, the defendant’s failure to comply with Rule 

8(c) does not cause the plaintiff any prejudice.” Id. Moreover,

“when the failure to raise an affirmative defense does not prejudice 

the plaintiff, it is not error for the trial court to hear evidence on 

the issue.” Id. 

With respect to the statute of frauds, while the Ritz 

defendants’ answer did not specifically use the phrase “statute of 

frauds,” it stated that, while the parties exchanged several e-mails,

no formal agreement was ever finalized in a signed writing. 

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Because the statute of frauds requires certain contractual 

agreements to be in a writing signed by the party to be charged, the

answer put Hallucination on notice that the statute of frauds was 

at issue. See Fla. Stat. § 725.01 (“No action shall be brought . . . 

upon any agreement that is not to be performed within the space 

of 1 year from the making thereof . . . unless the agreement . . . 

shall be in writing and signed by the party to be charged[.]”). 

For a similar reason, Hallucination’s arguments related to 

the competition privilege on its tortious interference claims fail. 

With respect to the competition privilege defense, while the 

Amphitheatre defendants’ answer did not use the specific words 

“competition privilege,” it described the competition privilege in 

slightly different words, listing as an affirmative defense that they 

were entitled to “protect their business interest and such actions 

are privileged and immune from liability for tortious 

interference.”2 See Hassan, 842 F.2d at 263 (“We must avoid 

2 Hallucination also argues in a conclusory fashion, without argument, that 

the Ritz defendants failed to plead “Capitano’s representative capacity 

immunity defense” as an affirmative defense to Hallucination’s tortious 

interference claim. “We have long held that an appellant abandons a claim 

when he either makes only passing references to it or raises it in a perfunctory 

manner without supporting arguments and authority.” Sapuppo v. Allstate 

Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014). But even if we considered 

this waived argument, it fails. The “representative capacity immunity 

defense” provides that an agent of a corporation acting within his 

representative capacity cannot be personally liable for a tortious interference 

claim. See Cedar Hills Properties Corp. v. Eastern Federal Corp., 575 So.2d 673, 676 

(Fla. 1st DCA 1991). Because the allegations in the complaint only describe

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hypertechnicality in pleading requirements and focus, instead, on 

enforcing the actual purpose of the rule,” which “is simply to 

guarantee that the opposing party has notice of any additional issue 

that may be raised at trial so that he or she is prepared to properly 

litigate it.”). Because an element of the “competition privilege” is 

whether the purpose of the alleged interference was to advance the 

defendant’s business interest in competing with the plaintiff, see 

International Sales & Service v. Austral Insulated Products, Inc., 262 

F.3d 1152, 1159 (11th Cir. 2001), Hallucination was on notice that

defendants intended to assert such a defense. Thus, Hallucination 

was not prejudiced by defendants’ failure to use the specific words 

“competition privilege” in its answer.3

Capitano as operating in his representative capacity, it was clear from the face 

of the complaint that Capitano was entitled to this defense.

3 Additionally, Hallucination argues that the bankruptcy court erred by basing 

its decision on unraised arguments; specifically, (1) Hallucination having a 

license rather than a lease, (2) the independent tort doctrine, and (3) lack of 

mutual assent. According to Hallucination, the defendants did not raise these 

arguments in their motions for summary judgment and it was thus improper 

for the district court to consider them. But Hallucination’s argument is belied 

by the record. As to Hallucination’s argument that the defendants did not 

move for summary judgment on the basis that Hallucination held a license

and not a lease, defendants’ motion for summary judgment clearly makes that 

argument. In relevant part, the motion states that “Hallucination alleges an 

agreement much different than the right exclusively to possess property and 

it therefore cannot prevail on its claim that it held a lease subject to the 

provisions of Chapter 83, Florida Statutes.” As to Hallucination’s argument 

that defendants did not move for summary judgment on the independent tort 

doctrine, both defendants and Hallucination presented argument on the 

independent tort doctrine at a summary judgment hearing, and the 

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B. Merits

On the merits, Hallucination argues that the bankruptcy 

court misapplied the law on (1) the statute of frauds in finding that 

no partnership or joint venture with a right of first refusal existed, 

and (2) the competition privilege. 

1. Statute of Frauds

Hallucination argues that the bankruptcy court misapplied 

the law on the statute of frauds because the parties had a three-year 

partnership with a right of first refusal, which Hallucination argues 

was evidenced by e-mails sufficient to overcome the statute of 

frauds.4 Hallucination’s arguments fail. 

Florida’s statute of frauds states that: 

defendants’ motion stated that Hallucination’s fraudulent inducement claim 

failed because it was not independent from the breach of contract claim—

which is precisely what Florida’s independent tort doctrine states. See Island 

Travel & Tours, Ltd., Co. v. MYR Indep., Inc., 300 So. 3d 1236, 1239 (Fla. 3d DCA 

2020) (“It is a fundamental, long-standing common law principle that a plaintiff 

may not recover in tort for a contract dispute unless the tort is independent of 

any breach of contract.”). Finally, Hallucination’s argument that the 

defendants did not move for summary judgment on mutual assent or 

ambiguity fails because defendants’ motion asserted that a valid contract was 

never formed. 

4 Hallucination also argues that the doctrine of part performance forecloses 

application of the statute of frauds. But the doctrine of part performance is an 

equitable doctrine only, and it does not apply to damages actions such as this 

one. Dwight v. Tobin, 947 F.2d 455, 459 (11th Cir. 1991) (citing Elsberry v. Sexton, 

54 So. 592 (Fla. 1911)). 

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No action shall be brought . . . for any lease . . . for a 

period longer than 1 year, or upon any agreement that 

is not to be performed within the space of 1 year from 

the making thereof . . . unless the agreement or 

promise upon which such action shall be brought, or 

some note or memorandum thereof shall be in 

writing and signed by the party to be charged . . . .

Fla. Stat. § 725.01. “To satisfy the statute, a note or memorandum 

may take almost any possible form.” Kolski ex rel. Kolski v. Kolski, 

731 So. 2d 169, 171 (Fla. 3d DCA 1999). “All that the statute requires 

is written evidence from which the whole contract may be made 

out.” Id. Under Florida law, “[i]t is well established that a meeting 

of the minds of the parties on all essential elements is a prerequisite 

to the existence of an enforceable contract, and where it appears 

that the parties are continuing to negotiate as to essential terms of 

an agreement, there can be no meeting of the minds.” Greater N.Y.

Corp. v. Cenvill Miami Beach Corp., 620 So. 2d 1068, 1070 (Fla. 3d DCA 

1993).

“Under Florida law, a joint venture is a form of 

partnership[.]” Williams v. Obstfeld, 314 F.3d 1270, 1275 (11th Cir. 

2002) “A partnership is created only where ‘both parties contribute 

to the labor or capital of the enterprise, have a mutuality of interest 

in both profits and losses, and agree to share in the assets and 

liabilities of the business.’” Id. (citing Dreyfuss v. Dreyfuss, 701 So.

2d 437, 439 (Fla. 3d DCA 1997)). The necessary elements to create 

a joint venture are (1) a common purpose; (2) a joint proprietary 

interest in the subject matter; (3) the right to share profits and duty 

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to share losses; and (4) joint control or right of control. Id. at 1275–

76. A court cannot find that a partnership or joint venture exists if 

any factor is missing. Id. at 1276 & n.7.

As an initial matter, Hallucination acknowledges that the

alleged agreement was for longer than one year and so the statute 

of frauds applies, but Hallucination maintains that the e-mails 

between the parties satisfied the statute of frauds. But the e-mails 

between the parties indicate that, while the parties were working 

towards an agreement, they had not yet finalized that agreement. 

For example, after Petrucelli e-mailed Hallucination setting 

out “talking points,” Hallucination responded that there were a few 

things that “were very concerning.” Petrucelli responded with 

some edits, and highlighted areas where Hallucination needed to 

add language in order to “take the next step to develop a 

document”—including key terms such as whether there would be 

a right to extend or a right of first refusal. Hallucination responded 

with several changes and requested a meeting to get “on the same 

page.” Petrucelli responded to the changes and suggested that a

right of refusal might best protect Hallucination’s concerns about 

the end of the term, but that they would set up a call to discuss 

further, and that Capitano “fe[lt] confident that we will get aligned 

and strike an agreement that is favorable for us all.” This was the 

last written communication between the parties prior to the 

alleged onset date of the agreement. Then, over a year later, the emails between the parties demonstrated that they still had not 

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agreed over key terms, including whether Hallucination had 

exclusive rights on Saturday nights. 

Thus, these communications do not demonstrate a finalized 

agreement of any sort, let alone a three-year partnership with a 

right of first refusal. Kolski ex rel. Kolski, 731 So. 2d at 171; Cenvill 

Miami Beach Corp., 620 So. 2d at 1070. Regardless, there is no 

mention of forming a partnership or joint venture in e-mails, let 

alone confirmation that one was officially being entered. And as to 

the right of first refusal, while the possibility of including such a 

term was discussed, there is no e-mail confirming its inclusion.

Because these e-mails are insufficient “evidence from which the 

whole contract may be made out,” Kolski ex rel. Kolski, 731 So. 2d at 

171, the bankruptcy court properly granted summary judgment to 

the Ritz defendants on statute of frauds grounds. 

2. Competition privilege

Hallucination argues that the bankruptcy court misapplied 

the law on the competition privilege in granting summary 

judgment to the Amphitheatre defendants on Hallucination’s 

tortious interference claim. 

To succeed on its tortious interference claim, Hallucination 

must prove (1) the existence of a contract or business relationship; 

(2) knowledge of the contract or relationship by the defendant; (3) 

“an intentional and unjustified interference with the [contract or]

relationship by the defendant”; and (4) damage to the plaintiff as a 

result. Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So. 2d 812, 

814 (Fla. 1994). The competition privilege, if shown, can negate as 

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a matter of law the “unjustified interference” element of a tortious 

interference claim. See Austral Insulated Prods., Inc., 262 F.3d at 

1158–59.

To establish the competition privilege defense—i.e., that 

any interference was lawful and justified—the Amphitheatre 

defendants were required to show that: (1) the relationship 

between Hallucination and Amphitheatre “concerned a matter 

involved in the competition between [them]”; (2) Amphitheatre

“did not employ improper means”; (3) “it did not intend to create 

or continue an illegal restraint of competition”; and (4) “its purpose 

was at least in part to advance its interest in competing with 

[Hallucination].” Id. at 1159. The bankruptcy court did not err in 

holding that the competition privilege applied here. As to the first 

and fourth elements, Hallucination and Amphitheatre are in a 

similar business and were competing for use of the venue. As to 

the second element, there is no evidence that Amphitheatre 

employed improper means—such as fraud, deceit, pretext, or 

broken promises—to attain the use of the venue. And as to the 

third element, there is no evidence or suggestion that 

Amphitheatre sought to illegally restrain competition. Instead, the 

record shows that Amphitheatre’s venue burned down, and so its 

pursuit of Ritz was simply because it needed a new venue to stay 

afloat.5 

5 Hallucination makes arguments, for the first time in its reply brief, related to 

the merits (1) of its Count III claim against the Amphitheatre defendants for 

self-help eviction in violation of Florida Statute § 83.05, and (2) its Count V 

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C. Motions for reconsideration 

Hallucination argues that the bankruptcy court abused its 

discretion in denying its motions for reconsideration. 

“The only grounds for granting a Rule 59 motion [for 

reconsideration] are newly-discovered evidence or manifest errors 

of law or fact. A Rule 59(e) motion cannot be used to relitigate old 

matters, raise argument or present evidence that could have been 

raised prior to the entry of judgment.” Arthur v. King, 500 F.3d 

1335, 1343 (11th Cir. 2007) (alterations adopted) (internal citation 

and quotations omitted). Here, the crux of Hallucination’s 

motions for reconsideration merely quarreled with the outcome 

and attempted to relitigate the matters decided adversely to them, 

which is not a proper ground for a motion for reconsideration. Id. 

Although Hallucination asserted errors of law in the bankruptcy 

court’s decisions, the bankruptcy court explained why 

Hallucination was incorrect, and why summary judgment 

remained appropriate. Given that we agree with the district court’s 

summary judgment decision, as discussed above, the district court 

did not abuse its discretion in denying the motions for 

reconsideration. 

For all the reasons discussed above, we affirm.

claim for fraudulent inducement against the Ritz defendants. But “[w]e 

decline to address an argument advanced by an appellant for the first time in 

a reply brief.” Big Top Koolers, Inc. v. Circus-Man Snacks, Inc., 528 F.3d 839, 844 

(11th Cir. 2008). 

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AFFIRMED.

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