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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION RENUEN CORPORATION, J. CHARLES NEMES and DONGJOON ALEXANDER KIM, Plaintiffs, v.Case No:6:14-cv-1754-Orl-41TBS JOHN L. LAMEIRA, AMERICAS GREEN ENERGY SOURCE, INC., AMERICAS GREEN ENERGY CONTRACTORS, INC., CATHY J. LERMAN, STEVEN H. LERMAN, CATHY J. LERMAN, P.A. and DOES 1-50, Defendants. / ORDER THIS CAUSE is before the Court on Defendant Americas Green Energy Contractors, Inc.sMotiontoDismiss(Doc.65);CathyJ .LermanP.A.sMotiontoDismiss(Doc.66); Americas Green Energy Source, Inc. and J ohn L. Lameiras Motion to Dismiss (Doc. 67); Cathy J . Lermans Motion to Dismiss (Doc. 69), and Steven H. Lermans Motion to Dismiss (Doc. 70). For the reasons stated herein, all five motions will be granted in part. I.BACKGROUND A.Relevant Parties Plaintiff RenuEn Corporation (RenuEn) is a Florida corporation engaged in the business of selling and installing energy saving products and services for residential and commercial clients. (Compl., Doc. 1, 1). Plaintiff J . Charles Nemes is the Chief Executive Officer of RenuEn, and Plaintiff Dongjoon Alexander Kim is the Chief Legal Officer. (Id. 23).Case 6:14-cv-01754-CEM-TBS Document 118 Filed 08/03/15 Page 1 of 22 PageID 1532Page 2 of 22

DefendantAmericasGreenEnergySource,Inc.(AGES)andDefendantAmericas Green Energy Contractors, Inc. (AGEC) are engaged in the business of marketing and selling renewable energy and energy efficiency related products on behalf of other companies holding professional licenses to sell and install such products. (Id. 56). Defendant J ohn L. Lameira controls both corporations. (Id. 4, 6). Defendant Cathy J . Lerman (C. Lerman), an attorney, is married to Defendant Steven H. Lerman (S. Lerman), a Detective for the Coral Springs Police Department. (Id. 78). Defendant Cathy Lerman, P.A. (the Lerman Firm) is the law firm of Defendant C. Lerman. (Id. 9, 47). B.Factual Background The pertinent facts giving rise to Plaintiffs claims occurred after AGES contracted with RenuEn to sell RenuEns products and services. (Id. 25). On J anuary 19, 2014, Lameira, acting on behalf of AGES, executed a Sales and Distribution Agreement (Agreement) with RenuEn. (Id.). However, on J uly 11, 2014, RenuEn terminated the Agreement after allegedly learning that LameirahadintentionsofharmingRenuEn.(Id.2630).AfterRenuEnterminatedthe Agreement, RenuEn alleges that Lameira and AGES began to commit acts with the intent to damage RenuEns reputation and interfere with its contractual relations. (Id. 40). RenuEn asserts that AGES continued selling and signing customers using RenuEn contracts and documents and openlyinfringeditstrademarks.(Id.3136).LameiraalsoallegedlyencouragedAGES employees to contact RenuEn customers, vendors, finance partners, and government departments to disseminate false information about RenuEn and its officers. (Id. 4146).DeterminedtobolsteritseffortstoharmRenuEnsreputation,LameiraandAGES allegedly recruited other parties to assist with their campaign to discredit Plaintiffs. (Id. 47). In doing so, Lameira and AGES purportedly formed a group that RenuEn refers to as the Anti-Case 6:14-cv-01754-CEM-TBS Document 118 Filed 08/03/15 Page 2 of 22 PageID 1533Page 3 of 22

RenuEn Group (the ARG). (Id.). Plaintiffs aver that the ARG was comprised of the following individuals and entities: Lameira, AGES and its employees and agents, AGEC and its employees and agents, Walter Kritsky,1 C. Lerman, S. Lerman, the Lerman Firm, and Does 1-50. (Id. 47, 173).PlaintiffsclaimthattheARGpostedasubstantialamountoffalseanddisparaging statements about RenuEn on the internet.(Id. 47, 51111, 11319,12447). Many of the statements proclaimed, inter alia, that RenuEn was a Ponzi scheme, engaged in fraud, and targeted the elderly. (See id. 51111, 11319, 12447). Although Defendants allegedly posted damaging information about RenuEn and its officers on numerous internet websites, most of the disparaging posts occurred on www.ripoffreport.com and C. Lermans blog and Twitter page. (Id. 140). PlaintiffsalsoassertthatS.LermancausedtheCoralSpringsPoliceDepartmenttopostan unauthorized Fraud Alert regarding RenuEn on Facebook and Twitter. (Id. 11314, 12021).As a result of Defendants alleged tortious acts, RenuEn filed a Complaint in the United States District Court for the Middle District of Florida seeking, inter alia, recovery for damages caused by Defendants actions. The Complaint asserts the following claims against Defendants: false designation of origin in violation of the Lanham Act, 15 U.S.C. 1125(a)(1)(A), against Defendants Lameira and AGES (Count I); false advertising in violation of the Lanham Act, 15 U.S.C. 1125(a)(1)(B), against Lameira, AGES, and AGEC (Count II); civil violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1961 et seq. (Count III); defamation per se (Count IV); defamation (Count V); tortious interference with contractual business relations (Count VI); violation of Floridas Deceptive and Unfair Trade Practices Act 1 Kritsky is a former employee of RenuEn. (Compl. 10). Plaintiffs initially named Kritsky asadefendanttothisaction,butlatervoluntarilydismissedallclaimsagainstKritskywith prejudice on November 20, 2014. (Voluntary Dismissal, Doc. 39). Case 6:14-cv-01754-CEM-TBS Document 118 Filed 08/03/15 Page 3 of 22 PageID 1534Page 4 of 22

(FDUPTA), Fla. Stat. 501.201 et seq. (Count VII); aiding and abetting tortious conduct, against Does 1-50 (Count VIII)2; and civilconspiracy(CountIX). Defendantshave filed motions to dismiss Plaintiffs claims on a variety of grounds, as further specified below. II.LEGAL STANDARD A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint for failure to state a claim upon which relief can be granted. In determining whether to dismiss under Rule 12(b)(6), a court accepts the factual allegations in the complaint as true and construes them in a light most favorable to the non-moving party. See United Techs. Corp. v. Mazer, 556 F.3d 1260, 1269 (11th Cir. 2009). Nonetheless, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions, and [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Furthermore, [t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. III.DISCUSSION A.Shotgun Pleading 2 The Court will not address Count VIII in this Order as it is only asserted against the severalunidentifieddefendantsandnoDefendanthasmovedtodismissthisclaim.(Compl. 21923). Case 6:14-cv-01754-CEM-TBS Document 118 Filed 08/03/15 Page 4 of 22 PageID 1535Page 5 of 22

Defendants argue that the Complaint constitutes a shotgun pleading. Shotgun pleadings fail . . . to give the defendants adequate notice of the claims against them and the grounds upon which each claim rests. Weiland v. Palm Beach Cty. Sheriffs Office, No. 13-14396, 2015 WL 4098270, at *5 (11th Cir. J uly 8, 2015). The quintessential shotgun pleading contains several counts,eachoneincorporatingbyreferencetheallegationsofitspredecessors,leadingtoa situation where most of the counts (i.e., all but the first) contain irrelevant factual allegations and legal conclusions. StrategicIncomeFund,L.L.C.v.Spear,Leeds&KelloggCorp., 305 F.3d 1293, 1295 (11th Cir. 2002); see also Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996) ([The plaintiffs] complaint is a perfect example of shotgun pleading in that it is virtually impossible to know which allegations of fact are intended to support which claim(s) for relief. (citation omitted)). Plaintiffs Complaint is a shotgun pleading. Each count incorporates the factual allegations of its predecessors then incorporates all of the factual allegations within the entire Complaint. (Id. 154, 162, 171, 185, 199, 208, 213, 219, 224). Therefore, the Complaint will be dismissed for failure to comply with the applicable pleading standards. However, Plaintiffs have requested leave to amend in the alternative. Accordingly, because leave to amend is not required when amendment would be futile, the Court will also address Defendants substantive arguments for dismissal with prejudice. B.Federal Claims 1.Count I: False Designation of Origin To state a claim for false designation of origin in violation of 15 U.S.C. 1125(a)(1)(A), Plaintiffs must allege both that they had trademark rights in the mark or name at issue and that the other party had adopted a mark or name that was the same, or confusingly similar to their mark, Case 6:14-cv-01754-CEM-TBS Document 118 Filed 08/03/15 Page 5 of 22 PageID 1536Page 6 of 22

such that consumers were likely to confuse the two. Suntree Techs., Inc. v. EcoSense Intl, Inc., 802 F. Supp. 2d 1273, 1280 (M.D. Fla. 2011) (citing LoneStarSteakhouse&Saloon,Inc.v. Longhorn Steaks, Inc., 106 F.3d 355, 358 (11th Cir. 1997)), affd, 693 F.3d 1338 (11th Cir. 2012). AGES and Lameira contend that Plaintiffs have failed to provide sufficient allegations supporting their claim for false designation of origin. This argument is unpersuasive.Plaintiffs allege that RenuEn owns the trademarks at issue. (Compl. 156). Plaintiffs further allege that after RenuEn terminated its agreement with Lameira and AGES, AGES and Lameira still continued using RenuEn/Energy Solution contracts in order to mislead customers into thinking that they were signing contracts for RenuEn products and services when they were actuallycontractingwithanon-RenuEnentity.(Id.3138,157).AGESanditssales representatives purportedly signed approximately ten to fifteen contracts with RenuEn customers byholdingthemselvesoutasaRenuEndealerandusingRenuEnsdocuments.(Id.32). Moreover, AGES allegedly displayed a RenuEn/Energy Solutions logo outside of its office door and distributed pizza certificates to customers using RenuEns name and logo. (Id. 36). Accepting these well-pleaded allegations as true, the Court finds that Plaintiffs have sufficiently pleaded a claim of false designation of origin against Defendants Lameira and AGES.2.Count II: False Advertising The Lanham Act further prohibits the use of false or misleading representation of fact, which...incommercialadvertisingorpromotion,misrepresentsthenature,characteristics, qualities, or geographic origin of his or her or another persons goods, services, or commercial activities. 15 U.S.C. 1125(a)(1)(B). To state a claim for false advertising Plaintiffs must allege that(1)theadvertisementsoftheopposingpart[ies]werefalseormisleading;(2)the advertisementsdeceived,orhadthecapacitytodeceive,consumers;(3)thedeceptionhada Case 6:14-cv-01754-CEM-TBS Document 118 Filed 08/03/15 Page 6 of 22 PageID 1537Page 7 of 22

material effect on purchasing decisions; (4) the misrepresented product or service affects interstate commerce; and (5) the movant[s] [have] beenor [are] likely to beinjured as a result of the false advertising. HicksonCorp.v.N.CrossarmCo., 357 F.3d 1256, 1260 (11th Cir. 2004). Furthermore, the purported advertisement must constitute commercial advertising or promotion withinthemeaningof1125(a)(1)(B).Inorderforrepresentationstoconstitutecommercial advertising, they must be: (1) commercial speech; (2) by a defendant who is in commercial competition with plaintiff; (3) for the purpose of influencing consumers to buy defendants goods orservices;and(4)mustbedisseminatedsufficientlytotherelevantpurchasingpublicto constitute advertising or promotion within that industry. Gordon&BreachSci.Publishers S.A. v. Am. Inst. of Physics, 859 F. Supp. 1521, 153536 (S.D.N.Y. 1994); see also Suntree Techs., Inc.,802F.Supp.2dat1286(describingtheGordontestasthemostwidespreadtestfor determining whether a representation constitutes commercial advertising). At the outset, to the extent Defendants argue that it is not apparent from the [C]omplaint which of these postings constituted commercial advertising for Defendant[s], (see, e.g., AGES Mot. Dismiss at 8), Defendants have failed to properly bring this issue before the Court. It is clear from the Complaint which postings Plaintiffs allege constitute commercial advertising within the meaning of the Lanham Act. If Defendants wish to challenge this designation, they must come before the Court with more than a conclusory statement that fails to articulate either a legal or factual basis supporting dismissal. See M.D. Fla. R. 3.01(a) (In a motion or other application for an order, the movant shall include a concise statement of the precise relief requested, a statement of the basis for the request, and a memorandum of legal authority in support of the request.). Plaintiffs allege that Defendants AGEC, AGES, and Lameira are in direct competition with RenuEn in the efficient and renewable energy industry. (Compl. 56, 39, 165). Plaintiffs further Case 6:14-cv-01754-CEM-TBS Document 118 Filed 08/03/15 Page 7 of 22 PageID 1538Page 8 of 22

allege that while in direct competition with RenuEn, Lameira and AGES engaged in a campaign of false advertising by misrepresenting the nature, characteristics, and qualities of RenuEns goods and services. (Seeid. 3940, 4647). Plaintiffs also allege that the ARGwhich includes AGEChas made numerous comments online falsely stating, inter alia, that RenuEn is a Ponzi scheme and targets the elderly. (See id. 6269, 7999, 10110, 137 (describing the false and disparaging statements that the ARG allegedly made regarding RenuEn and its officers)). Finally, Plaintiffs allege that they suffered damages including but not limited to loss of sales and goodwill, diminution in stock value, and damage to its existing and potential business relations. (Id. 168). Based upon the allegations of the Complaint, it is reasonable to infer that Defendants alleged statements were false, had the capacity to deceive consumers, and that they had a material effect on purchasing decisions. Additionally, because Defendants allegedly made most of their misrepresentationsonline,theCourtcanalsoreasonablyinferthatinterstatecommercewas affected. Therefore, Defendants Motions to Dismiss fail to provide sufficient grounds for the dismissal of Count II with prejudice. 3.Count III: RICO Under 18 U.S.C. 1962(c), it is unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprises affairs through a pattern of racketeering activity or collection of unlawful debt. Thus, to plead a claim for violation of 1692(c), the plaintiff must allege: (1) that an enterprise existed; (2) that the enterprise affected interstate commerce; (3) that the defendants were employed by or associated with the enterprise; (4) that the defendants participated, either directly or indirectly, in the conduct of the enterprise; Case 6:14-cv-01754-CEM-TBS Document 118 Filed 08/03/15 Page 8 of 22 PageID 1539Page 9 of 22

and (5) that the defendants participated through a pattern of racketeering activity. United States v. Browne, 505 F.3d 1229, 1257 (11th Cir. 2007). Plaintiffshavefailedtosufficientlyallegethefifthelement,apatternofracketeering activity.3 To successfully allege a pattern of racketeering activity, plaintiffs must charge that: (1) the defendants committed two or more predicate acts within a ten-year time span; (2) the predicate acts were related to one another; and (3) the predicate acts demonstrated criminal conduct of a continuingnature.Jacksonv.BellSouthTelecomms.,372F.3d1250,1264(11thCir.2004) (emphasis in original). The last element, continuity or the threat of continued criminal activity, may refer to either a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition. The former period is referred to as closed-ended continuity, and the latter as open-ended continuity. Lockheed Martin Corp. v. Boeing Co., 314 F. Supp. 2d 1198, 1219 (M.D. Fla. 2004) (quoting H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 236 (1989)). Plaintiffs allege an open-ended continuity of criminal activity. (See Compl. 173, 175). In open-ended cases that rely on alleging the threat of continuity, plaintiffs can meet their [pleading] burden by establishing either that the racketeering acts themselves include a specific threat of repetition extending indefinitely into the future, or that the predicate acts or offenses are part of an ongoing entitys regular way of doing business. Jackson, 372 F.3d at 1265 (emphasis omitted) (quoting H.J. Inc., 492 U.S. at 242). Plaintiffs have not alleged that the specified pattern of conduct is Defendants regular way of doing business. They make no allegations that the 3TheCourtnotesthatPlaintiffshaveallegedthatDefendantsactionsconstitute[]a pattern of racketeering activity within the meaning of 18 U.S.C. 1961(5). (Compl. 181). However, such a quotation to the language of the statute is a legal conclusion that this Court is not obligated to accept as true. Plaintiffs have not provided sufficient factual allegations to allege the existence of a pattern. Case 6:14-cv-01754-CEM-TBS Document 118 Filed 08/03/15 Page 9 of 22 PageID 1540Page 10 of 22

purported enterprise engaged in similar conduct before or has engaged in similar conduct against any other individual or company. See Aeropower, Ltd. v. Matherly, 511 F. Supp. 2d 1139, 1152 (M.D. Ala. 2007) (holding that a RICO complaint failed to allege open-ended continuity where there was no indication that there [were] other incidents where the defendants . . . conducted themselves in the same manner and [the plaintiff] . . . offered no prior examples of how this conduct factor[ed] in with the defendants regular business practices). The Complaint also fails to allege any threat of repetition. At the outset, Plaintiffs only make the conclusory allegation that Defendants are engaged in ongoing activities under the alleged RICO scheme, this is insufficient to plead the requisite continuing threat. See Kivisto v. Miller, Canfield, Paddock & Stone, PLC, 413 F. Appx 136, 138 (11th Cir. 2011) (An open-ended continuity cannot be shown by conclusory allegations that once begun, the alleged misconduct threatens to continue into the future.). Furthermore, it is clear that single schemes with a specific objective and a natural ending point can almost never present a threat of continuing racketeering activity. Ferrell v. Durbin, 311 F. Appx 253, 257 (11th Cir. 2009). The Complaint alleges that Defendants have conspired to ruin Plaintiffs business and reputations. Thus, the alleged RICO enterprise consists of a single scheme with a specific objective. Additionally, there is a natural endingpointtotheschemeonceDefendantshaveaccomplishedtheirobjectivesofcausing RenuEn to cease operations; Defendants cannot conspire to ruin the reputation and success of a defunct entity. See Dysart v. BankTrust, 516 F. Appx 861, 864 (11th Cir. 2013) ([The plaintiff] failed to establish open-ended continuity because the scheme she alleged . . . cannot be repeated.); seealsoManaxv.McNamara, 842 F.2d 808, 81112 (5th Cir. 1988) (holding that the plaintiff Case 6:14-cv-01754-CEM-TBS Document 118 Filed 08/03/15 Page 10 of 22 PageID 1541Page 11 of 22

failed to allege continuity where the alleged association had as its purpose a single, relatively short-lived goal: accomplishing the destruction of [the defendants] medical practice).4 TotheextentthatPlaintiffshaveattemptedtoallegeclosed-endedcontinuity,the Complaint also fails to sufficiently allege a pattern of racketeering activity. A party alleging a RICO violation may demonstrate continuity over a closed period by proving a series of related predicates extending over a substantial period of time. Predicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy this requirement. H.J. Inc., 492 U.S. at 242. Furthermore, in cases like this one, where the RICO allegations concern only a single scheme with a discretegoal, the courts have refused to find a closed-ended pattern of racketeering even when the scheme took place over longer periods of time. Jackson, 372 F.3d at 1267 (collecting cases). Thus, courts have required, at a minimum, a greater period of time and more alleged victims in such cases. See Ferrell, 311 F. Appx at 256 (holding that a complaint did not sufficiently allege closed-ended continuity where the alleged actions took place over roughly a year and a half because of the scant allegations, the limited time frame, the single scheme and the existence of only two victims); J&DIntlTrading(H.K.)Ltd.v.MTDEquip.,LLC, No. 1:13-cv-2526-RWS, 2014 WL 1683375, at *11 (N.D. Ga. Apr. 28, 2014) ([T]he period [of alleged 4 The Manax court held that the lack of continuity negated the existence of an association-in-fact enterprise. Manax, 842 F.2d at 81112. Courts in this District have likewise stated that a single,short-termobjectivegoestotheexistenceofanassociation-in-fact.SeeGellertv. Richardson, No. 6:95-cv-256-Orl-19, 1995 WL 856715, at *1 (M.D. Fla. J uly 24, 1995). However, the majority of cases in the Eleventh Circuit state that suchallegations negate the pattern of racketeering activity element. See,e.g., Ferrell, 311 F. Appx at 25657 (discussing continuity requirements in terms of pleading a pattern of racketeering activity). Thus, this Court will discuss thiselementinregardstothepleadingrequirementsofapattern.Nevertheless,totheextent pleading an association-in-fact requires similar allegations, Plaintiffs RICO claim is insufficiently pleaded for the reasons stated herein. Case 6:14-cv-01754-CEM-TBS Document 118 Filed 08/03/15 Page 11 of 22 PageID 1542Page 12 of 22

conduct] may have to be even longer where the RICO allegations concern only a single scheme with a discrete goal. (quotation omitted)). Taken in the light most favorable to Plaintiffs, the charged conduct occurred between August and October 2014. (Compl. 47, 142). Numerous courts have held that conduct lasting less than one year is insufficient to allege closed-ended continuity, see Jackson, 372 F.3d at 1266 (collecting cases), and the Eleventh Circuit has expressly stated that cases such as this one, with onlyahandfulofallegedvictims,asingle,isolatedgoal,andanarrowscopeofalleged racketeering activity, nine months is insufficient to allege closed-ended continuity, id. at 1267; see also Ferrell, 311 F. Appx at 256 (holding that conduct spanning a year and a half was insufficient to allege closed-ended continuity where there was a single scheme and only two victims). Thus, Plaintiffs allegations of conduct lasting only three months, constituting a single scheme with a distinctgoal,andwithrelativelyfewpurportedvictimsisinsufficienttopleadclosed-ended continuity.Therefore,Plaintiffshavenotpleadedeitheropen-orclosed-endedcontinuityas required to properly allege a pattern of racketeering activity in violation of 1692(c). Plaintiffs RICO claim, as pleaded, fails to state a claim. C.State Law Claims 1.Counts IV and V: Defamation Per Se and Defamation From what the Court can discern, Defendants argue that Plaintiffs defamation claims should be dismissed because: (1) Plaintiffs cannot prove their claims for defamation5; (2) Plaintiffs 5 The Court rejects Defendants arguments that their alleged statements are non-actionable as truthful, and that Plaintiffs will not be able to prove their claims. These are improper arguments at this stage in the proceedings. At the motion to dismiss stage, the Court must accept all well-pleadedfactsastrue.Iqbal,556U.S.at664.PlaintiffsspecificallyallegethatDefendants defamatorystatementsarefalse.Thus,theveracityofDefendantsallegedstatementsand Plaintiffs ability to prove this claim, are matters best resolved at the summary judgment stage or at trial. Case 6:14-cv-01754-CEM-TBS Document 118 Filed 08/03/15 Page 12 of 22 PageID 1543Page 13 of 22

fail to sufficiently allege the requisite elements of their claim; (3) Defendants alleged statements were protected under the First Amendment as pure opinion; and (4) Plaintiffs fail to allege actual malice. In addition to these arguments, S. Lerman contends that Plaintiffs defamation claims are barred by the absolute privilege doctrine, while C. Lerman and the Lerman Firm maintain that Plaintiffs have failed to comply with Floridas pre-suit notice requirements. Pre-suit Notice under Fla. Stat. 770.01 C.Lermanand theLerman Firmargue that Plaintiffs claimsfor defamation must be dismissed because C. Lerman and the Lerman Firm constitute media defendants by virtue of the Lerman Firms blog, but Plaintiffs failed to provide them with pre-suit notice pursuant to Fla. Stat. 770.01. Section 770.01 provides: Before any civil action is brought for publication . . . in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall . . . serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory. Florida courts have interpreted section 770.01 to apply only to media defendants. Intiharv.CitizensInfo.Assocs.,LLC, No. 2:13-cv-720-FtM-29CM, 2014 WL 842464, at *4 (M.D. Fla. Mar. 4, 2014). While Florida courts have determined that a blogger may constitute a media defendant, the mere title of blogger does not automatically render an individual a media defendant. The Court must consider the individual circumstances. See Comins v. Vanvoorhis, 135 So. 3d 545, 559 (Fla. 5th DCA 2014). In determining whether a defendant constitutes a media defendant, Florida courts consider whether the defendant engages in the traditional function of the news media, which is to initiate uninhibited, robust, and wide-open debate on public issues. Ortega Trujillo v. Banco Cent. Del Ecuador, 17 F. Supp. 2d 1334, 1338 (S.D. Fla. 1998) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974)). Thus, media defendants are not just those who impartially disseminate Case 6:14-cv-01754-CEM-TBS Document 118 Filed 08/03/15 Page 13 of 22 PageID 1544Page 14 of 22

information, or issue unsolicited, disinterested and neutral commentary as to matters of public interest. The term also applies to those who editorialize as to matters of public interest without being commissioned to do so by [their] clients. Tobinick v. Novella, No. 9:14-cv-80781, 2015 WL 1191267, at *8 (S.D. Fla. Mar. 16, 2015) (quoting Ortega Trujillo, 17 F. Supp. 2d at 1338). Neither C. Lerman nor the Lerman Firm constitute a media defendant within the meaning of section 770.01. Although it cannot be denied that Defendants used the blog to disseminate information, they did so primarily for purposes of financial gain and advertisement, not for the purpose of the free dissemination of information. Unlike the defendant in Comins, Defendants are not disinterested, neutral persons commenting on matters of public concern. Rather, Defendants haveactivelyusedtheinformationtheyaredisseminatingaboutPlaintiffstosolicitpotential clients. (See, e.g., Aug. 15, 2014 Blog Post, Ex. 4 to Compl., Doc. 1-1, at 6; Sept. 19. 2014 Blog Post, Ex. 29 to Compl., Doc. 1-5, at 24). Thus, Defendants are more akin to the public-relations firm defendant in Ortega Trujillo because they are acting out of financial interest and not in the interest of providing impartial commentary on matters of public concern. Rather, the editorial content provided by Defendants is, in a large sense, commissioned by those willing to pay their feestoprosecutetheallegedfraudsters.SeealsoTobinick,2015WL1191267,at*6,89 (distinguishingOrtegaTrujillobecausedefendantwasanot-for-profitcorporationwith educationalgoals,itscommentswerenotcommissioned,anditsblogdidnotadvertisethe defendants products). Therefore, C. Lerman and the Lerman Firm are not media defendants and are not entitled to pre-suit notice pursuant to section 770.01. The First Amendment Defendantsallegethatthechargedstatementsareopinionorhyperboleanddonot, therefore, constitute actionable defamation pursuant to the First Amendment. It is well established Case 6:14-cv-01754-CEM-TBS Document 118 Filed 08/03/15 Page 14 of 22 PageID 1545Page 15 of 22

thatapureexpressionofopinionisconstitutionallyprotected.Colodnyv.Iverson,Yoakum, Papiano&Hatch, 936F. Supp. 917, 923 (M.D. Fla. 1996) (quotationomitted). Thus, if the communicationatissueconstitutesapureexpressionofopinion,itisprotectedbytheFirst Amendment and cannot be the basis of a defamation claim. Morse v. Ripken, 707 So. 2d 921, 922 (Fla. 4th DCA 1998). However, if the statement is a mixed expression of fact and opinion or a pure expression of fact, it is not protected. Id. [W]hether the alleged defamatory word is a[] non-actionable expression of pure opinion or an actionable expression of pure fact or mixed opinion and fact is a question of law for the Court. Colodny, 936 F. Supp. at 923. At the outset, Defendants have pointed this Court to no allegations in the Complaint which would not constitute pure expressions of fact. The passing statement that the statements made by Defendant would be privileged, statements of opinion, and/or rhetorical hyperbole, (see,e.g., AGEC Mot. to Dismiss at 14), without citation to either the Complaint or to legal authority is not sufficient to properly bring this issue before the Court. In any event, Plaintiffs have alleged that Defendantsmadeatleastsomepurestatementsoffact.Therefore,Plaintiffshavealleged defamatory statements that are not subject to First Amendment protection. Actual Malice or Negligence To state a cause of action for defamation under Florida law, a plaintiff must allege: (1) publication; (2) falsity; (3) actor must act with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person; (4) actual damages; and (5) statement must be defamatory. Jews For Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008). Defamation per se occurs when a communication imputes to another . . . a criminal offense amounting to a felony . . . [or] conduct, characteristics, or a condition incompatiblewiththeproperexerciseofhislawfulbusiness,trade,profession,oroffice. Case 6:14-cv-01754-CEM-TBS Document 118 Filed 08/03/15 Page 15 of 22 PageID 1546Page 16 of 22

Campbell v. Jacksonville Kennel Club, 66 So. 2d 495, 497 (Fla. 1953). Defamation per se requires proof of all the elements of a defamation claim except damages, which are presumed. See Leavitt v. Cole, 291 F. Supp. 2d 1338, 1342 (M.D. Fla. 2003); Hood v. Connors, 419 So. 2d 742, 743 (Fla. 5thDCA1982).6Defendantsdonotchallengepublicationordamages,orthatthespecified statements are defamatory, but Defendants do contend that Plaintiffs have failed to plead the requisite culpability. Defendants also challenge the falsity of the statements; however, Plaintiffs have alleged that the statements are false and that is adequate at the motion to dismiss stage. Defendants contend that Plaintiffs are public figures and must, therefore, allege actual malice in order to state a claim for defamation. Plaintiffs, conversely, argue that they are not public figuresandmustonlyallegenegligenceastothetruthorfalsityofDefendantsstatements. However, the Court declines to determine if Plaintiffs are private or public figures at this time because the allegations of the Complaint are sufficient to allege actual malice as to Lamiera, AGES, AGEC, C. Lerman, and the Lerman Firm. Additionally, the allegations of the Complaint are insufficient to allege even negligence as to S. Lerman. To show actual malice a plaintiff must establish by clear and convincing evidence that the speaker made the statement with knowledge that it was false or with reckless disregard of whether it was false or not. Dunn v. Air Line Pilots Assn, 193 F.3d 1185, 1192 (11th Cir. 1999) (quoting Old Dominion Branch No. 496, Natl Assn of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 281 (1974)). Because actual malice is a matter of proof, allegations of knowledge of falsity or a reckless disregard for the statements falsity is sufficient at [the motion to dismiss] 6ForpurposesoftheMotionstoDismisspresentlybeforetheCourt,thedistinction between defamation and defamation per se is inconsequential. Defendants have not challenged Plaintiffs actual damages allegations and therefore the two claims may be considered together for purposes of this Order. Case 6:14-cv-01754-CEM-TBS Document 118 Filed 08/03/15 Page 16 of 22 PageID 1547Page 17 of 22

stage in the litigation. No Witness, LLC v. Cumulus Media Partners, LLC, No. 1:06-cv-1733 J EC, 2007 WL 4139399, at *8 (N.D. Ga. Nov. 13, 2007). The allegations, taken in the light most favorable to Plaintiffs, allege actual knowledge of falsity or reckless disregard as to Defendants Lamiera, AGES, AGEC, C. Lerman, and the Lerman Firm. Plaintiffs have alleged that the forenamed Defendants intentionally fabricated and published false information regarding Plaintiffs in order to harm Plaintiffs business and reputations. (See, e.g., Compl. 58, 60, 6263, 69, 81). This is sufficient to allege knowledge of falsehood as the Complaint is alleging that Defendants fabricated the subject statements. Furthermore, Plaintiffs have pleaded that C. Lerman was, at the least, guilty of reckless disregard as to the veracity of the statements. On August 18, 2014, Plaintiff Kim allegedly e-mailed C. Lerman in an attempt to cooperate with the investigation into Plaintiffs. (Id. 56). However, C. Lerman responded that she was not interested in [Plaintiffs] information. (Id. (quotation omitted)). This is adequate to plead at least reckless disregard on the part of C. Lerman. As to S. Lerman, Plaintiffs have failed to make any specific allegations as to his level of culpability for publishing the specified statements. Florida law requires at least a showing of negligence on the part of the defendant in order to be held liable for defamation. Miami Herald Publg Co. v. Ane, 423 So. 2d 376, 378 (Fla. 3d DCA 1982) (noting that under Florida law, a non-public figure must only establish that the defendant published the alleged false and defamatory statements with negligence), affd, 458 So. 2d 239 (Fla. 1984). Negligence, for the purpose of defamation law, means the defendant acted without reasonable care as to whether th[e] statements were true or false. Id. at 388. Here, Plaintiffs only allege that S. Lerman caused a purportedly defamatory statement to be posted on Facebook and Twitter. (Compl. 11314). Plaintiffs do not, however, make any allegations as to S. Lermans conduct in regards to the truth or falsity of Case 6:14-cv-01754-CEM-TBS Document 118 Filed 08/03/15 Page 17 of 22 PageID 1548Page 18 of 22

the statements. Plaintiffs have not pleaded that S. Lerman was aware that the information was false, that he was reckless in this regard, or that he failed to conduct an investigation into the veracity of his statements. To the extent that Plaintiffs argue that they alleged all Defendants acted with actual malice, (id. 193, 203), this is a legal conclusion and insufficient to overcome a motion to dismiss. Accordingly, Plaintiffs have alleged neither actual malice nor negligence with respect to S. Lerman.7 2.Count VI: Tortious Interference with Contractual Business Relations A claim for tortious interference with a business relationship requires (1) the existence of a business relationship[;] (2) knowledge of the relationship on the part of the defendant; (3) an intentional and unjustified interference with the relationship by the defendant; and (4) damage to the plaintiff as a result of the breach of the relationship. Gossard v. Adia Servs., Inc., 723 So. 2d 182, 184 (Fla. 1998) (quotation omitted).Defendants,withtheexceptionofS.Lerman,donotarguethattheComplaintlacks sufficient allegations supporting a claim for tortious interference, rather, they argue that Plaintiffs cannot prove their claim because RenuEns contracts were illegal and fraudulently induced and, therefore, are void. As an initial matter, this argument is improper at the motion to dismiss stage because the Court is limited to assessing the sufficiency of the allegations within the four corners oftheComplaint.Furthermore,thisargumentismeritlessasFloridacourtshaveexpressly recognized that a claim for tortious interference can be maintained even though [the] business relationshipisbasedonacontractwhichisvoidandunenforceable.EthanAllen,Inc.v. 7 The Complaint fails to sufficiently plead either defamation or defamation per se against Defendant S.Lerman. Therefore, the Court need not address S.Lermans absolute immunity defense at this time. Case 6:14-cv-01754-CEM-TBS Document 118 Filed 08/03/15 Page 18 of 22 PageID 1549Page 19 of 22

Georgetown Manor, Inc., 647 So. 2d 812, 815 (Fla. 1994) (citing UnitedYacht Brokers, Inc. v. Gillespie, 377 So. 2d 668, 672 (Fla. 1979)). S. Lerman argues that the Complaint is devoid of any fact-based allegations that there existed any business relationship with any contractor or customer that was terminated or destroyed, oranyfact-basedallegationthatanysuchparticularbusinessrelationshipwasknownto[S. Lerman]. (S. Lerman Mot. to Dismiss at 10). Plaintiffs have sufficiently alleged that Defendants, includingS.Lerman,hadknowledgeofexistingandprospectivebusinessrelationsbetween RenuEn and its customers. (See, e.g., Compl. 33, 38, 52, 71, 153). However, [e]ither a breach or termination of a business relationship is necessary to establish interference. Martinezv. Pavex Corp., 422 F. Supp. 2d 1284, 1297 (M.D. Fla. 2006); see also Anthony Distributors, Inc. v. Miller Brewing Co., 941 F. Supp. 1567, 1572 (M.D. Fla. 1996) ([B]ased on a review of relevant case law, . . . this Court holds that either breach or termination of a business relationship or expectancy is necessary to establish interference.). Plaintiffs have not specifically pleaded the breach or termination or an existing or expected business relationship. Thus, as currently pleaded, the Complaint fails to state a claim for tortious interference with a business relationship against any Defendant. 3.Count VII: FDUTPA AGEC, AGES, and Lameira8 contend that the Complaint does not contain sufficient factual allegations to state a claim under FDUTPA. To state an FDUTPA claim, [the plaintiff] must allege 8 Only Defendants AGEC, AGES, and Lameira challenge the FDUTPA claim. In their response, Plaintiffs do not argue that the remaining Defendants were intended to be addressed in Count VII. Accordingly, the Court will consider only those arguments before it andwill not address Count VII as to Defendants C. Lerman, S. Lerman, or the Lerman Firm. To the extent Plaintiffs intended to allege FDUTPA violations against one or all of these Defendants, they must do so with specificity. Generalized use of the term Defendants only adds to the confusion created Case 6:14-cv-01754-CEM-TBS Document 118 Filed 08/03/15 Page 19 of 22 PageID 1550Page 20 of 22

(1) a deceptive act or unfair trade practice; (2) causation; and (3) actual damages. Dolphin LLC v. WCI Cmtys., Inc., 715 F.3d 1243, 1250 (11th Cir. 2013) (citing Rollins, Inc. v. Butland, 951 So. 2d860,869(Fla.2dDCA2006)).PlaintiffsFDUPTAclaimessentiallyreliesonthesame allegations supporting Plaintiffs claims for trademark infringement and defamation. SeeNat. Answers,Inc.v.SmithKlineBeechamCorp.,529F.3d1325,1333(11thCir.2008)([The plaintiffs] claim for a violation of [FDUTPA] rises or falls on the success of [the plaintiffs] trademarkinfringementandfalseadvertisingclaims.);ArmyAviationHeritageFound.& Museum, Inc. v. Buis, 504 F. Supp. 2d 1254, 126263 (N.D. Fla. 2007) (noting that statements found to be defamatory [may] also constitute[] violations of FDUTPA where the defamatory statement relates to business matters). Plaintiffs have pleaded claims for trademark infringement anddefamationrelatedtobusinesspracticesagainstAGEC,AGES,andLameira.Therefore, AGECs, AGESs, and Lameiras motions to dismiss Plaintiffs FDUTPA claim with prejudice will be denied. 4.Count IX: Civil Conspiracy Under Florida law, a civil conspiracy requires: (a) an agreement between two or more parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts done under the conspiracy. Fuller v. Mortg. Elec. Registration Sys., Inc., 888 F. Supp. 2d 1257, 1273 (M.D. Fla. 2012) (quoting Eagletech Commcns, Inc. v. Bryn Mawr Inv. Grp., Inc., 79 So. 3d 855, 863 (Fla. 4th DCA 2012)). General allegations of conspiracy are inadequate. A complaint must set forth clear, positive, and specific allegations of civil conspiracy. Id. (quotation omitted). by Plaintiffs shotgun approach to pleading. The Complaint should clearly and specifically indicate each Defendant being charged with liability under each count of the Complaint. Case 6:14-cv-01754-CEM-TBS Document 118 Filed 08/03/15 Page 20 of 22 PageID 1551Page 21 of 22

Plaintiffs have failed to state a claim for civil conspiracy. Under Florida law, [i]t is not to be presumed that a mere conspiracy per se has resulted in civil damages; therefore, that fact must be pleaded in the complaint in order to make a good cause of action against motion. Bondv. Koscot Interplanetary, Inc., 246 So. 2d 631, 635 (Fla. 4th DCA1971) (quotation omitted); see also Catlett v. Chestnut, 146 So. 547, 479 (Fla. 1933) ([T]he character and extent of the private injury resulting from the alleged conspiracy must be pleaded by the complaining party . . . . It is not to be presumed that a mere conspiracy per se has resulted in civil damages.). Plaintiffs have not alleged any damages arising from the alleged conspiracy. Therefore, Plaintiffs civil conspiracy allegations fail to state a claim upon which relief can be granted.9 IV.CONCLUSION In accordance with the foregoing, it is hereby ORDERED and ADJUDGED as follows: 1.Defendant Americas Green Energy Contractors, Inc.s Motion to Dismiss (Doc. 65); Cathy J . Lerman P.A.s Motion to Dismiss (Doc. 66); Americas Green Energy Source, Inc. and J ohn L. Lameiras Motion to Dismiss (Doc. 67); Cathy J . Lermans Motion to Dismiss (Doc. 69), and Steven H. Lermans Motion to Dismiss (Doc. 70) are GRANTED in part. 2.The Complaint (Doc. 1) is DISMISSED without prejudice. 3.Plaintiffs may file an amended complaint, in accordance with this Order, on or before Monday, August 17, 2015. Failure to do so will result in the dismissal of 9 S. Lerman argues that Plaintiffs state law claims are barred by sovereign immunity under Fla. Stat. 768.28(9)(a), which provides an officer with immunity for any actions taken in the course of his or her employment unless such officer acted in bad faith or with malicious purpose. However, Plaintiffs have failed to state a claim against S. Lerman, and therefore, the Court declines toaddresshisqualifiedimmunitydefenseatthistime.Defendantmayrenewthisclaimif appropriate in the future. Case 6:14-cv-01754-CEM-TBS Document 118 Filed 08/03/15 Page 21 of 22 PageID 1552Page 22 of 22

Counts III, VI, and IX and all claims against Defendant S. Lerman with prejudice and without further notice. DONE and ORDERED in Orlando, Florida on August 3, 2015. Copies furnished to: Counsel of Record Case 6:14-cv-01754-CEM-TBS Document 118 Filed 08/03/15 Page 22 of 22 PageID 1553