NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 14

- 1139

_____________

IN RE: MICROBILT CORPORATION, ET AL.

, Debtors

_____________

MICROBILT CORPORATION,

Appellant

v.

CHEX SYSTEM S, INC.; GUNSTER, YOAKLEY & STEWART, P.A. ;

DAVID M. WELLS

_____________

On Appeal f

rom the United States District Court

for the District of New Jersey ( Civil Action No. 13

- cv

- 0 4752 ) District Judge: Honorable Anne E. Thompson

_______________

Submitted Und er Third Circuit LAR 34.1(a)

October 3 0 , 2014

Before: MCKEE, Chief Judge , GREENAWAY, JR., and KRAUSE, Circuit Judges

.

(Filed : December 10, 2014 )

_______________

OPINION 

_______________

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

KRAUSE, Circuit Judge

.

The Microbi lt Corporation ( “ Microbilt ” ) filed an adversa ry complaint in

Bankruptcy Court against Chex Systems, Inc. ( “ Chex ” )

, Gunster, Yoakley, & Stewart,

P.A.

, and David Wells (collectively, “ Gunster ” )

, asserting claims for tortious interference

and for violation of the Florida Uniform Trade Secrets Act ( “ FUTS A ” )

. 1 The Bankruptcy

Court granted Chex’s motion compelling arbitration on most of the counts and granted

Gunster’s mo tion for summary judgment on those that remained

. The District Court

affirmed, and Microbi lt now raises two issues on appeal

. 2

First, M icrobilt argues that the District and Bankruptcy Court s erred in holding

that Florida’s absolute litigation privilege applies to the disclosure of trade secrets

allegedly in violation of FUTSA , or, in the alternative, that we should certify this

question t o the Florida Supreme Court pursuant to 3d Cir. LAR 110.1

. 3 Florida’s

litigation privilege provides legal immunity for “any [tortious] act occurring during the

course of a judicial proceeding . . . so long as the act has some relation to the

proceeding

, ” regardless of the nature of the underlying dispute. 4

1 F.S.A. § § 688.001

- 688.009.

2 The District Court had appellate jurisdiction over the final order of the Bankruptcy Court under 28 U.S.C. § 158(a)(1). We have jurisdiction to hear this appeal under 28 U.S.C. § 158(d) and 28 U.S.C. § 1291.

3 We may certify a question to a state court “[w]hen the procedures of the highest court of a state provide for certification to that court by a federal court of questions arising under the laws of that state which will control the outcome of a case pending in

the federal court . . . .” 3d Cir. LAR 110.1

. 4 Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole , 950 So. 2d 380, 384 (Fla. 2007) (quoting Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v.

United States Fire Ins. Co. , 639 So. 2d 606, 608 (Fla. 1994)).3

Microbilt relies on several recent cases carving out exceptions from the privilege

for certain acts that occur before, after, or outside of a judicial proceeding

, but the s e

exception s have no relevanc e to the present case

. 5 H ere, Gunster attached copies of a

Microbilt subsidiary’s invoices to customers as an exhibit to a complaint filed for breach

of contract in the Middle District of Florida , alleged ly disclosing Microbilt’s trade secrets

in violati on of FUTSA

. It is well

- settled under Florida law that t he absolute litigation

privilege applies to statements in pleadings filed with the co urt

. 6 We reject the

contention that decisions from other states applying foreign law are relevant here. For

thes e reason s , we agree with the District and Bankruptcy Court s that Gunster’s c onduct

was privilege d and that any amendment to the complaint would be futile

. 7 W e also

decline to certify a settled question of law to the Florida Supreme Court. 8

Second, Micr obilt argues that the District and Bankruptcy Court s erred in

dismissing and referring to arbitration its claims for tortious interference with contract

and tortious interference with prospective economic advantage

. If a valid arbitration

clause exists an d the dispute falls within the substantive scope o f that clause, we must

5 See, e.g., DelMonico v. Tray nor , 116 So. 3d 1205, 1208, 1211

- 14 (Fla. 2013) (confirming the vitality of the absolute litigation privilege for acts that have some relation to a judicial proceeding, but holding absolute privilege does not extend to alleged defamatory ex

- parte, out

- of

- c ourt statement to potential nonparty witnesses in the course of investigating a pending lawsuit); Fridovich v. Fridovich , 598 So. 2d 65 , 69 (Fla. 1992) (holding absolute litigation privilege does not extend to defamatory statements made to authorities prio r to initiation of a criminal proceeding).

6 DelMonico , 116 So. 3d at 1217 ; s ee also Fla. R. Civ. P. 1.130(b) (“Any exhibit attached to a pleading shall be considered a part thereof for all purposes.”).

7 See Oran v. Stafford , 226 F.3d 275, 291 (3d C ir. 2000).

8 See Francisco v. United States , 267 F.3d 303, 308 n.5 (3d Cir. 2001).4

comp el the parties to arbitrate the dispute. 9 The Resale Agreement between Chex and

Microbilt contemplates that “[a]ny dispute, difference, controversy or claim arising out of

or rel ating to this Agreement shall be settled by binding arbitration . . . .” 10 Microbilt

alleged that Chex committed tortious interference by disclosing information defined

under the terms of the Resale A greement as “confidential” to G unster and the general

pu blic. 11 Though nominally fram ed as tort claims, these claims relate to the parties’

obligations under their contract, and as such, they are arbitrable under the broad scope of

the a rbitration clause in the R esale A greement. 12

For the foregoing reasons, w e affirm the District Court’s decision upholding the

decision of the Bankruptcy Court.

9 Mitsubishi Motors Corp. v. Soler Chrysler

- Plymouth Inc. , 473 U.S. 614, 626 (1985) ; CardioNet, Inc. v. Cigna Health Corp. , 751 F.3d 165, 172 (3d Cir. 2014)

. 10 Resale Agreement at ¶ 29.

11 Each of the relevant claims cites the Resale Agreement’s definition of “Confidential Information.” (Compl. at ¶ 63; 72; 81; 88.)

12 See Mitsubishi , 473 U.S. at 622 n.9; Southland Corp. v. Keating , 465 U.S. 1, 15 n.7 (1984); Colli ns & Aikman Prods. Co. v. Bldg. Sys., Inc. , 58 F.3d 16, 20

- 21 (2d Cir. 1995).