`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF FLORIDA
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`
`
`EDWIN J. PRADO GALARZA
`Plaintiff
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`v.
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`EXAMSOFT WORLDWIDE, INC.,
`INSURER A
`Defendants
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`
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`Case No.
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`COMPLAINT
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`TO THE HONORABLE COURT:
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`COMES NOW, the plaintiff Edwin J. Prado Galarza (hereinafter “Mr. Prado” or
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`“the plaintiff”), represented by the undersigned counsel and respectfully states, alleges,
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`and requests as follows:
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`JURISDICTION AND VENUE
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`1. The Honorable Court has diversity jurisdiction over this action pursuant to 28
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`U.S.C. § 1332(a) as the matter in controversy exceeds the sum or value of
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`$75,000, exclusive of interests and costs, and is wholly between citizens of
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`different states.
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`2. The Honorable Court has personal jurisdiction over the known defendant
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`because it is a Delaware corporation authorized to conduct business in the State
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`of Florida and has conducted business within the State of Florida.
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`3. Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because the events or
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`omissions giving rise to the plaintiff’s claims occurred within this judicial district.
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`DEMAND FOR JURY TRIAL
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`4. The plaintiff invokes his Seventh Amendment right to a jury trial on all issues
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`triable by a jury as the value in controversy exceeds $20. See U.S. Const.
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`amend. VII (“In suits at common law, where the value in controversy shall exceed
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`twenty dollars, the right of trial by jury shall be preserved.”); see also Fed. R. Civ.
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`P. 38.
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`THE PARTIES
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`5. The plaintiff, Edwin J. Prado Galarza, is a resident and citizen of Puerto Rico.
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`His postal address is as follows: 403 Calle Del Parque, Suite 8, San Juan, Puerto
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`Rico 00912.
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`6. The defendant, ExamSoft Worldwide, Inc. (hereinafter “ExamSoft”), is a
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`corporation existing under the laws of the State of Delaware with its principal
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`place of business located at 5001 LBJ Freeway, Suite 700, Dallas, Texas 75244.
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`7. ExamSoft regularly conducts business throughout this district, the State of
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`Florida, and the United States generally.
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`8. The unknown defendant, Insurer A, is an insurance company with the capacity to
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`sue and be sued that issued a policy with insurance coverage for ExamSoft and
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`whose name and principal place of business is currently unknown to the plaintiff.
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`FACTUAL ALLEGATIONS COMMON TO ALL CLAIMS FOR RELIEF
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`9. Mr. Prado is a well-known attorney in Puerto Rico and has practiced law for
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`twenty-eight (28) years primarily in New York and Puerto Rico, and more recently
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`in the State of Florida. He is the managing partner of Prado, Núñez and
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`Associates, C.S.P. and has worked as an Associate Professor at the University
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`of Puerto Rico for twenty-eight (28) years. He is currently the President of the
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`Puerto Rico Bar Association for the State of Florida. Mr. Prado has represented
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`high-profile clients in the entertainment industry and his name and reputation
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`have been highlighted by the media and legal peers.
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`10. Mr. Prado paid ExamSoft money to download and use their software to take the
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`essay portion of the Florida Bar’s admissions test administered in July of 2017 in
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`Tampa, Florida.
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`11. Mr. Prado completed the essay portion of the examination within the 3-hour time
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`frame permitted by the Florida Board of Bar Examiners (hereinafter “FBE”).
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`12. On August 11, 2017, Mr. Prado received a letter from the FBE notifying him that
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`ExamSoft had notified it that the recorded time on Mr. Prado’s exam platform
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`exceeded the time limit by 1 minute and 4 seconds.
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`13. The FBE requested an explanation for the alleged transgression and notified Mr.
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`Prado that his grades could be impounded pending the result of the investigation
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`pursuant to Rule 4-62.1 of the Rules of the Supreme Court Relating to
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`Admissions to The Bar.
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`14. Mr. Prado provided a timely response to the accusation and categorically denied
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`the suggestion that he had exceeded the time allotted on the essay portion of the
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`examination.
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`15. On September 28, 2017, the FBE provided Mr. Prado with a copy of the
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`ExamSoft records that were referenced in its August 11, 2017, letter and further
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`notified Mr. Prado that the ExamSoft activity log showed that he added 42
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`characters on the essay portion of the examination after the time to complete the
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`examination had elapsed. The FBE letter further directed Mr. Prado to appear at
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`the FBE’s October 2017 hearing.
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`16. The allegations raised by the FBE based on the ExamSoft records caused Mr.
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`Prado grave consternation despite his categorical denial of any impropriety or
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`unethical conduct on his part.
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`17. The mere allegation of dishonesty in an examination of this nature entails serious
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`predicaments for the applicant that could derail attempts to obtain licenses to
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`practice law in Florida and other states and possibly lead to disciplinary action in
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`those jurisdictions where the applicant is already licensed.
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`18. The essence of the allegations suggested by the ExamSoft activity records was
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`that Mr. Prado, who has enjoyed an unblemished legal career for the past 28
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`years, cheated on the Florida Bar Examination.
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`19. The frivolous allegations leveled against Mr. Prado as a result of the ExamSoft
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`records put his professional certifications, professional career, and reputation in
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`the legal community and with his clients in jeopardy.
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`20. As previously alluded to, Mr. Prado has been an associate professor for the
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`University of Puerto Rico for 28 years and will be retiring soon. Yet, the
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`accusation by ExamSoft equates to academic dishonesty that would have
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`resulted in his firing.
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`21. As a result of the flawed report issued by ExamSoft, Mr. Prado was precluded
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`from having access to his examination results and was required to undergo an
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`investigation that would focus on the allegation that he cheated on the
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`examination by exceeding the applicable time constraints for the essay portion.
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`22. In mounting his defense against these unfounded allegations, Mr. Prado spent
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`more than $25,000 in legal and expert-witness fees, among other expenses, to
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`prepare and try his case in front of the Ethics Committee of the Florida Bar.
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`23. Mr. Prado retained Eric Chuang, the Managing Director of BDO in charge of
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`Cyber Incident Response and a former FBI agent with expertise in Computer
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`Forensics (hereinafter “the expert”) who prepared an expert report. Exhibit 1.
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`24. In order to prepare the report, the expert examined the laptop computer Mr.
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`Prado used for the exam. See Id. at p. 2. The laptop computer ran on a
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`Windows operating system.
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`25. The expert found that the ExamSoft software caused two crashes of one of the
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`laptop’s native software programs “that manages multiple Windows processes
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`and services including network connections and Windows Time Service. Once
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`[said program] crashes, Windows become unstable. That instability can cause
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`other components to fail in unpredictable manners. Once [said program]
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`crashes, information from the System time and Clock cannot be relied upon.” Id.
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`26. “ExamSoft has a ‘Time Limit’ enforcement function built in, but that function was
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`set to be OFF by default /test administrator. That function should be set to ‘ON’
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`for timed tests such as Bar Exam. This setting is ONLY configurable by the Test
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`Administrator, not by the user.” Id. (emphasis in original).
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`27. As it turns out, the computer went into “suspend mode” on two separate
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`occasions at the exact same times that the program crashed. Id. at pp. 2-3. The
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`ExamSoft software “was the most likely cause as it was active right before the
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`. . . crash.” Id.
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`28. “Because the Suspend/Sleep function is heavily dependent on the system
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`time/clock, the accuracy of the system time/clock is no longer valid as evidenced
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`by the random triggering of system Suspend/Sleep.” Id. at p. 3.
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`29. “Given what the logs indicate, it is highly probable that the some combination of
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`ExamSoft algorithms and/or use of system resources (time API, system interrupt,
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`etc.) are flawed or faulty, or misconfigured.” Id.
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`30. As it was ExamSoft that created the system instability and caused Mr. Prado’s
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`computer to become unstable, it was impossible to guarantee the correct amount
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`of time spent by Mr. Prado to complete the exam by relying on the software. Id.
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`at p. 6.
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`31. The expert report attributed the conclusions regarding the alleged time
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`transgression to a system suspension that occurred in the ExamSoft system.
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`32. There was no other evidence in existence or relied upon by ExamSoft, the FBE,
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`or the Ethics Committee of the Florida Bar that would tend to suggest that Mr.
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`Prado may have cheated on the exam.
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`33. Despite there being thousands of other test takers and dozens of proctors
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`present during this examination, there is not a single person who witnessed Mr.
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`Prado cheat on the exam.
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`34. Moreover, it would be illogical for Mr. Prado to jeopardize his already prominent
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`career and reputation over an extra minute on a 2-day exam.
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`35. Although Mr. Prado prevailed before the Ethics Committee of the Florida Bar, this
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`unfortunate process delayed his admission to the practice of law in the State of
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`Florida for more than 9 months, caused him grave emotional distress and
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`suffering, required the investment of substantial financial resources, and resulted
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`in him missing out on many potentially lucrative opportunities in Florida.
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`FIRST CLAIM FOR RELIEF
`Negligence
`36. The allegations in all preceding paragraphs are realleged as if fully incorporated
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`herein.
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`37. By accepting payment from Mr. Prado, the defendants assumed a duty to deliver
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`to the Florida Board of Bar Examiners the answers provided by him during the
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`examination and to correctly record the time expended by Mr. Prado in
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`completing the essay portion of the examination.
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`38. The defendants owed a duty to Mr. Prado to use and exercise reasonable and
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`due care in the creation and maintenance of the infrastructure for ExamSoft’s
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`software, including the website, servers, and other components necessary to
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`obtain the correct time spent by Mr. Prado during the exam. They also had the
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`responsibility to examine the results of their activity software to ensure their
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`accuracy prior to leveling claims that Mr. Prado had exceeded the allotted time
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`for the completion of the essay portion.
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`39. The defendants breached their duties by failing to adequately design, maintain,
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`monitor, update, or improve its system and, as a result, Mr. Prado was falsely
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`accused of cheating on the essay portion of the examination by allegedly
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`exceeding the time limit for the examination by 1 minute and 4 seconds.
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`40. The defendants knew or, with the reasonable exercise of due care, should have
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`known of the inherent risks that come with running the ExamSoft software and
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`the internal errors that the system could generate, which would undermine the
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`accuracy of its results.
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`41. The defendants’ carelessness and negligent conduct directly caused Mr. Prado
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`to suffer emotional distress and pecuniary harm.
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`42. Mr. Prado is entitled to a judgment for compensatory and punitive damages,
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`costs, prejudgment interest, and any other relief the court deems equitable and
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`just under the circumstances.
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`43. Mr. Prado’s damages stem from the payment made to ExamSoft for the use of
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`the software, the payment of the expert to investigate the cheating allegations,
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`the payment of legal fees related to his defense before the Ethics Committee of
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`the Florida Bar, the loss of earnings as a result of the 9-month delay to be
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`admitted into the Florida Bar, emotional suffering, and the damages to Mr.
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`Prado’s honor and reputation.
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`SECOND CLAIM FOR RELIEF
`Product Liability
`44. The allegations in all preceding paragraphs are realleged as if fully incorporated
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`herein.
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`45. Mr. Prado used ExamSoft’s software in the manner that it was intended to be
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`used or in a manner that the defendants could have reasonably expected a
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`person to use the product.
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`46. The defendants’ software was defectively designed, defectively manufactured, or
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`did not contain adequate instructions or warnings to ensure its proper use. The
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`defendants failed to create or maintain the proper infrastructure for ExamSoft’s
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`software, including the website, servers, and other components necessary to
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`obtain the correct time spent by Mr. Prado during the exam.
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`47. As a direct and proximate result of the defective software and the defendants’
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`actions, Mr. Prado experienced emotional distress and pecuniary harm.
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`48. Mr. Prado is entitled to a judgment for compensatory and punitive damages,
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`costs, prejudgment interest, and any other relief the court deems equitable and
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`just under the circumstances.
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`49. Mr. Prado’s damages stem from the payment made to ExamSoft for the use of
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`the software, the payment of the expert to investigate the cheating allegations,
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`the payment of legal fees related to his defense before the Ethics Committee of
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`the Florida Bar, the loss of earnings as a result of the 9-month delay to be
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`admitted into the Florida Bar, emotional suffering, and the damages to Mr.
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`Prado’s honor and reputation.
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`THIRD CLAIM FOR RELIEF
`Breach of Contract
`50. The allegations in all preceding paragraphs are realleged as if fully incorporated
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`herein.
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`51. In order to download and use the defendants’ software, Mr. Prado entered into a
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`valid and binding contract whereby he paid
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`the defendants monetary
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`consideration and the defendants had a duty to provide a reliable software
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`system that would provide reliable time results for the examination.
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`52. Mr. Prado fully performed his obligations under the contract by paying the fee
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`required by ExamSoft to use its system and software. Additionally, Mr. Prado
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`complied with all conditions precedent and followed all ExamSoft’s installation
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`and use instructions.
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`53. The defendants materially breached this contract by failing to provide a software
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`that provided reliable time results for the examination. Additionally, the
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`defendants failed to sufficiently examine the software results to eliminate the
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`possibility of error before informing the FBE and Mr. Prado that he had exceeded
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`the allotted time for the test.
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`54. As a direct and proximate result of the defendants’ bad faith, misconduct, and
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`breach of contract, Mr. Prado suffered substantial damages and emotional
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`distress.
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`55. Mr. Prado is entitled to a judgment for compensatory and punitive damages,
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`costs, prejudgment interest, attorneys’ fees, and any other relief the court deems
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`equitable and just under the circumstances.
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`56. Mr. Prado’s damages stem from the payment made to ExamSoft for the use of
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`the software, the payment of the expert to investigate the cheating allegations,
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`the payment of legal fees related to his defense before the Ethics Committee of
`
`the Florida Bar, the loss of earnings as a result of the 9-month delay to be
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`admitted into the Florida Bar, emotional suffering, and the damages to Mr.
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`Prado’s honor and reputation.
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`FOURTH CLAIM FOR RELIEF
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`Unjust Enrichment
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`57. The allegations in all preceding paragraphs are realleged as if fully incorporated
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`herein.
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`58. Mr. Prado affirmatively alleges that the defendants have been unjustly enriched
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`by charging and collecting a fee for providing reliable software and support while
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`failing to do so.
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`59. If the legal claims addressed herein are found to be unavailable, then there is no
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`adequate remedy at law.
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`60. Mr. Prado conferred a benefit upon the defendants by way of payment for their
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`services. The defendants knowingly profited from the sale or licensing of its
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`software to Mr. Prado. The defendants received and retained money belonging
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`to Mr. Prado because of its unlawful conduct described herein. The defendants
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`appreciate or have knowledge of the benefit conferred upon them by Mr. Prado.
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`61. Under principles of equity, the defendants should not be permitted to retain
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`payment or profit from the unlawful conduct described herein.
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`62. Mr. Prado has experienced emotional distress and pecuniary harm as a direct
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`result of the defendants’ unlawful conduct.
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`63. Mr. Prado is entitled to a judgment for compensatory and punitive damages,
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`costs, prejudgment interest, and any other relief the court deems equitable and
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`just under the circumstances.
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`64. Mr. Prado’s damages stem from the payment made to ExamSoft for the use of
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`the software, the payment of the expert to investigate the cheating allegations,
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`the payment of legal fees related to his defense before the Ethics Committee of
`
`the Florida Bar, the loss of earnings as a result of the 9-month delay to be
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`admitted into the Florida Bar, emotional suffering, and the damages to Mr.
`
`Prado’s honor and reputation.
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`FIFTH CLAIM FOR RELIEF
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`Florida Deceptive and Unfair Trade Practices Act
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`65. The allegations in all preceding paragraphs are realleged as if fully incorporated
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`herein.
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`66. On its website and in connection with consumers downloading the software,
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`ExamSoft falsely advertised its software as reliable and as a trusted platform for
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`administering bar examinations.
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`67. Mr. Prado’s experience demonstrates that the software is defective and will lead
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`to distorted results that indicate that a test taker exceeded their allotted exam
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`time. Further, the support, maintenance, and troubleshooting systems in place
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`for the software are inadequate as they were unable to realize that the software
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`incorrectly interpreted that Mr. Prado exceeded the allotted time on the exam.
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`68. The defendants knew, or in the exercise of reasonable diligence, should have
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`known, that these statements and actions were deceptive, unconscionable, or
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`unfair.
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`69. The defendants made these statements for the purpose of selling property and
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`intended that boards of bar examiners and test takers alike would rely on these
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`representations by using and purchasing their software.
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`70. These statements and actions were likely to mislead an objective consumer
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`acting reasonably considering the circumstances.
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`71. Mr. Prado did in fact rely upon these statements, and such reliance was
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`reasonable and
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`justified, given ExamSoft’s self-professed reputation
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`for
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`reliability.
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`72. As a result of his reliance on the defendants’ misrepresentations, Mr. Prado
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`experienced emotional distress and pecuniary harm.
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`73. Mr. Prado is entitled to a judgment for compensatory and punitive damages,
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`costs, prejudgment interest, attorneys’ fees, and any other relief the court deems
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`equitable and just under the circumstances.
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`74. Mr. Prado’s damages stem from the payment made to ExamSoft for the use of
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`the software, the payment of the expert to investigate the cheating allegations,
`
`the payment of legal fees related to his defense before the Ethics Committee of
`
`the Florida Bar, the loss of earnings as a result of the 9-month delay to be
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`admitted into the Florida Bar, emotional suffering, and the damages to Mr.
`
`Prado’s honor and reputation.
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`SIXTH CLAIM FOR RELIEF
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`Misleading Advertising
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`75. The allegations in all preceding paragraphs are realleged as if fully incorporated
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`herein.
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`76. On its website and in connection with consumers downloading the software,
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`ExamSoft falsely advertised its software as reliable and as a trusted platform for
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`administering bar examinations. These statements and actions were likely to
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`mislead an objective consumer acting reasonably considering the circumstances.
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`77. Mr. Prado’s experience demonstrates that the software is defective and will lead
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`to distorted results that indicate that a test taker exceeded their allotted exam
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`time. Further, the support, maintenance, and troubleshooting systems in place
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`for the software are inadequate as they were unable to realize that the software
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`incorrectly interpreted that Mr. Prado exceeded the allotted time on the exam.
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`78. The defendants knew that these statements and actions were false, deceptive,
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`unconscionable, or unfair. The defendants knew that the software had
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`imperfections, bugs, or glitches that could interfere with the proper gathering of
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`information.
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`79. The defendants made these material misrepresentations intentionally for the
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`purpose of inducing others to purchase the software and intended that boards of
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`bar examiners and test takers alike would rely on these representations by using
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`and purchasing their software.
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`80. Mr. Prado did in fact rely upon these statements, and such reliance was
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`reasonable and
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`justified, given ExamSoft’s self-professed reputation
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`for
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`reliability.
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`81. As a result of his reliance on the defendants’ misrepresentations, Mr. Prado
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`experienced emotional distress and pecuniary harm.
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`82. Mr. Prado is entitled to a judgment for compensatory and punitive damages,
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`costs, prejudgment interest, attorneys’ fees, and any other relief the court deems
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`equitable and just under the circumstances.
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`83. Mr. Prado’s damages stem from the payment made to ExamSoft for the use of
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`the software, the payment of the expert to investigate the cheating allegations,
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`the payment of legal fees related to his defense before the Ethics Committee of
`
`the Florida Bar, the loss of earnings as a result of the 9-month delay to be
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`admitted into the Florida Bar, emotional suffering, and the damages to Mr.
`
`Prado’s honor and reputation.
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`PRAYER FOR RELIEF
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`WHEREFORE, in view of foregoing, the plaintiff respectfully requests and prays
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`for judgement in his favor against the defendants as follows:
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`A. Ordering the defendants to pay compensatory and punitive damages;
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`B. Ordering the defendants to pay costs, prejudgment interest, and attorneys’ fees;
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`and
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`C. Ordering any further relief that the court deems equitable and just under the
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`circumstances.
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`RESPECTFULLY SUBMITTED in Orlando, Florida, on this 21th day of July,
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`2020.
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`
`
`s/ Manuel Franco, Esq.
`Attorney at Law
`513 W. Colonial Dr. Unit 5
`Orlando, FL 32804
`Florida Bar No. 126443
`(407) 420-7926
`(787) 977-1411
`Manuel.Franco.Law@gmail.com
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