Case 0:08-cv-61862-DTKH Document 33 Entered on FLSD Docket 02/09/2009 Page 1 of 12
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`WEST PALM BEACH DIVISION
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`CASE NO. 08-61862-CIV-HURLEY/HOPKINS
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`
`
`
`
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`
`
`v.
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`THE HOME DEPOT U.S.A., INC., a Delaware
`corporation; and INDUSTRIAPLEX, INC.,
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`a Delaware corporation,
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`______________________________________/
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`DEFENDANT INDUSTRIAPLEX(cid:8217)S REPLY TO PLAINTIFF(cid:8217)S MEMORANDUM IN
`OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
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`MICHAEL S. POWELL, an individual,
`
`
`Plaintiff,
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`Defendants.
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`Defendant Industriaplex, Inc. ((cid:8220)Industriaplex(cid:8221)), by and through undersigned counsel,
`respectfully submits this memorandum, in support of its motion for summary judgment [DE 21],
`and in reply to Plaintiff(cid:8217)s memorandum in opposition [DE 29].
`I.
`INTRODUCTION
`The Plaintiff has failed to point to the existence of any factual allegations that would
`distinguish the complaint in this later-filed action, which alleges misappropriation of trade
`secrets ((cid:8220)Powell II(cid:8221)), from the complaint in the earlier filed action, which unsuccessfully alleged
`tortious interference with a business relationship ((cid:8220)Powell I(cid:8221)). Accordingly, the Plaintiff has
`implicitly acknowledged that the two cases are based on the same series of transactions and the
`same factual predicate. Because the claim-splitting analysis pertinent here borrows from claim-
`preclusion principles, and because the Eleventh Circuit has adopted the Restatement(cid:8217)s
`transactional approach, and has approved of the (cid:8220)factual allegations(cid:8221) approach for determining
`claim preclusion, it follows that summary judgment is warranted in favor of Industriaplex.
`Powell II is based on the same series of transactions as Powell I, and a comparison of the factual
`allegations in both complaints leads to the undeniable conclusion that they are based on the same
`factual predicate. See, e.g., In re Justice Oaks II, Ltd., 898 F.2d 1544, 1551 (11th Cir. 1990)
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`(adopting § 24 of the Restatement (Second) of Judgments, and stating (cid:8216)[c]laims are part of the
`same cause of action when they arise out of the same transaction or series of transactions.(cid:8221)); and,
`First Ala. Bank v. Parsons Steel, Inc., 747 F.2d 1367, 1370 (11th Cir. 1984), reversed on other
`grounds, 474 U.S. 518 (1986) ((cid:8220)In a well-reasoned opinion, the federal district court found that
`the federal BHCA action and the state action were based on the same factual allegations and the
`damages claimed in each suit were substantially the same. The district court held that any
`additional state claims relating to the fact situation could have, and should have been raised in
`federal court under the doctrine of pendent jurisdiction.(cid:8221)).
`Defendant Industriaplex has also moved for summary judgment on the bases set forth in
`the motion for summary judgment and memorandum of law filed by the Defendant The Home
`Depot, USA, Inc. ((cid:8220)Home Depot(cid:8221)), and hereby incorporates the reply memorandum filed by
`Home Depot in support of its motion for summary judgment, as well as, its reply to the
`Plaintiff(cid:8217)s Statement of Facts [DE 31, 32].
`Plaintiff(cid:8217)s Statement of Facts
`The Plaintiff has filed a (cid:8220)Statement of Facts as to Which There is a Genuine Issue to be
`Tried(cid:8221) [DE 28], which is devoid of (cid:8220)specific references to pleadings, depositions, answers to
`interrogatories, admissions, and affidavits(cid:8221), as required by S.D. Fla. L.R. 7.5(C). For this reason,
`the Plaintiff(cid:8217)s Statement of Facts should be stricken, or at the very least, given no weight.
`In that filing, as well as in his memorandum in opposition, the Plaintiff has falsely
`represented that Industriaplex knew of the existence of the state court action at some early date.
`The truth is that Industriaplex(cid:8217)s counsel was provided a copy of the state court action, for the
`first time, on September 30, 2008 (over three months after its filing, and 6 days prior to an
`October trial setting), when a legal assistant for the law firm of Tripp Scott, P.A., forwarded the
`original version of the state court complaint by email. See Declaration of John Cyril Malloy, III,
`attached as Exhibit A. Although the action was filed on June 27, 2008, 37 days prior to a trial
`setting, Plaintiff did not file the notice required by S.D. Fla. L. R. 3.8. On December 1, 2008,
`this Court denied all pending motions to amend in Powell I, including motions that were filed
`prior to June 27, 2008, the date the Plaintiff filed Powell II. This Court should not look
`favorably on Plaintiff(cid:8217)s conduct, nor allow him to run an end-around the rules of procedure or
`this Court(cid:8217)s case administration orders, which would be the result should this Court decide to
`either consolidate the two actions or allow this later-filed action to proceed.
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`II. MEMORANDUM OF LAW
`A. Summary Judgment is Warranted Because It is Undisputed That the Complaint
`in Powell II is Based on the Same Factual Predicate as the Complaint in Powell I.
`
`There can be little doubt that the complaints filed in Powell I and Powell II are based on
`the identical factual predicate and alleged wrongdoing by Industriaplex. Like the tortious
`interference claim brought in Powell I, the later-filed complaint for misappropriation of trade
`secrets is founded on allegations that Industriaplex copied the Plaintiff(cid:8217)s Safe Hands unit in
`2004. Despite this, in the memorandum in opposition, the Plaintiff states that Powell II is (cid:8220)based
`on entirely distinct underlying facts(cid:8221) and relates to (cid:8220)distinct categories of damages(cid:8221) vis-à-vis the
`tortious interference claim that was dismissed in Powell I. However, the memorandum does not
`elaborate upon the supposed distinct facts or damages. Both complaints are indeed based on the
`same factual predicate, and both claims (tortious interference with a business relationship and
`misappropriation of trade secrets) sought the same types of damages, i.e., Plaintiff(cid:8217)s damages,
`and a disgorgement of Defendant(cid:8217)s profits. In short, Plaintiff has not countered the comparison
`of the complaints contained in Defendant(cid:8217)s memorandum.
`Undermining the Plaintiff(cid:8217)s argument to the contrary, a mere side by side comparison of
`the complaints filed by Plaintiff clearly demonstrates the identical factual predicate for the
`tortious interference claims of Powell I, and the trade secret claims of Powell II. Instances where
`the two complaints are similar, if not identical, include the following:
`
`• Plaintiff began working to develop a mechanism to enhance the safety of the
`radial arm saws in Home Depot(cid:8217)s stores.
`
`• Less than one week later, Plaintiff successfully developed a prototype of what he
`termed (cid:8220)Safe Hands(cid:8221), a safety top apparatus designed to enhance the safety of the
`radial arm saws used by Home Depot.
`
`• In the meantime, Plaintiff started the patent application process for his
`mechanism. (both complaints referencing same Exhibit A).
`
`• Approximately one week later, Plaintiff demonstrates his safety device to Home
`Depot representatives. (both complaints referencing same Exhibit B).
`
`• After the demonstration, Home Depot issued eight purchase orders for the
`Plaintiff(cid:8217)s units.
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`Case 0:08-cv-61862-DTKH Document 33 Entered on FLSD Docket 02/09/2009 Page 4 of 12
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`• Plaintiff produced eight units and marked them with the terms (cid:8220)Patent Pending(cid:8221).
`(both complaints referencing same Exhibit C).
`
`• Around this time, Home Depot directs Industriaplex to copy the (cid:8220)Safe Hands(cid:8221)
`unit and produce it for Home Depot.(cid:8221)
`
`
`
`
`
`• Ed Heck, a Home Depot employee involved in the saw guard project, and who
`interacted with the Plaintiff, later became employed by Industriaplex.
`
`
`DE 22; SOF 12; See Ex. A, Complaint in Powell I; and, Ex. F & H, Complaint and Amended
`Complaint in Powell II.
`(cid:8220)According to the claim splitting doctrine, a district court as part of its general power to
`administer its docket, has the authority to stay or dismiss a suit that is duplicative of another case
`then pending in federal court.(cid:8221) Zephyr Aviation III, L.L.C. v. Keytech Ltd., 2008 U.S. Dist.
`LEXIS 21944, *3, n. 4 (M.D. Fla. Mar. 19, 2008). In the claim-splitting context, (cid:8220)[c]ourts
`borrow from the test for claim preclusion and consider whether to bar the second suit if it
`involves "the same parties or their privies" and "arises out of the same transaction or series of
`transactions" as the first suit. Id.
`In the instant case, then, the proper analysis requires a determination as to whether, once
`final judgment has been rendered in Powell I, would Powell II be precluded under the doctrine of
`claim preclusion, also known as res judicata. If the answer to this question is yes, then the
`Plaintiff has improperly split his claim between Powell I and Powell II, and, accordingly, the
`Court may dismiss Powell II. See Id. Because the parties involved in Powell I and Powell II are
`identical, this analysis simply requires the Court to determine whether the claims asserted in
`Powell I and Powell II would be considered part of the same (cid:8220)claim(cid:8221) or (cid:8220)cause of action(cid:8221) for
`purposes of res judicata. See e.g. Kaiser Aerospace & Elec. Corp. v. Teledyne Indus. (In re
`Piper Aircraft Corp.), 244 F.3d 1289, 1296-1297 (11th Cir. 2001); Korman v. IRS, 2007 U.S.
`Dist. LEXIS 91046, **18-19 (S.D. Fla. 2007).
`The Eleventh Circuit has adopted the Restatement(cid:8217)s transactional approach for
`determining whether two claims are the same. See, e.g., In re Justice Oaks II, Ltd., 898 F.2d
`1544, 1551 (11th Cir. 1990) (adopting § 24 of the Restatement (Second) of Judgments, and
`stating (cid:8216)[c]laims are part of the same cause of action when they arise out of the same transaction
`or series of transactions.(cid:8221)); Kaiser Aerospace & Elec. Corp. v. Teledyne Indus. (In re Piper
`Aircraft Corp.), 244 F.3d 1289, 1296-1297 (11th Cir. 2001) ((cid:8220)It is now said, in general, that if a
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`case arises out of the same nucleus of operative fact, or is based upon the same factual predicate,
`as a former action, that the two cases are really the same 'claim' or 'cause of action' for purposes
`of res judicata."); and, Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1239 (11th Cir. 1999).
`The Eleventh Circuit has also approved of the factual allegations test that has been utilized in
`other circuits, which determines whether two claims are the same by comparing their factual
`allegations. See First Ala. Bank v. Parsons Steel, Inc., 747 F.2d 1367, 1370 (11th Cir. 1984),
`reversed on other grounds, 474 U.S. 518 (1986).
`In order to make this determination, the Court need only look to the allegations set forth
`in the pleadings of Powell II, as compared to Powell I, and take note that they are both based on
`the same alleged acts of misappropriation, regardless of the Plaintiff(cid:8217)s newly asserted legal
`theory in support of Powell II. Plaintiff cannot avoid the application of the basic principles of
`res judicata merely by applying a different legal theory in Powell II, than was asserted in Powell
`I. Rather, (cid:8220)res judicata applies not only to the precise legal theory presented in the prior case,
`but to all legal theories and claims arising out of the same nucleus of operative fact.(cid:8221) NAACP v.
`Hunt, 891 F.2d 1555, 1561 (11th Cir. 1990); see also Lea v. Republic Airlines, Inc., 903 F.2d
`624, 634 (9th Cir. 1990) (principles of res judicata apply where in first action counsel (cid:8220)did not
`happen to think of the theory he now advances,(cid:8221) because (cid:8220)oversight erects no bar of res judicata
`with respect to those claims that could have been pursued in the earlier litigation(cid:8221)).
`In the instant case, a comparison of the allegations asserted against Industriaplex in the
`complaints of Powell I and Powell II clearly demonstrate that the actions asserted arise out of the
`same nucleus of operative facts, or (cid:8220)transactions or series of transactions,(cid:8221) such that the doctrine
`of claim-splitting warrants dismissal of Powell II. See SOF 12; Compare Exhibit A, Complaint
`in Powell I, ¶¶ 19, 23-26, 28-29, 32, 38-39, and Exhibit H, Amended Complaint in Powell II, ¶¶
`13, 17-20, 22-24, 26, 28. For example, the pleadings in Powell I and Powell II both include,
`inter alia, allegations that Home Depot directed Industriaplex to copy the (cid:8220)Safe Hands(cid:8221) unit and
`produce it for Home Depot, and that Ed Heck, a Home Depot employee involved in the saw
`guard project, and who interacted with the Plaintiff, later became employed by Industriaplex. Id.
`The instant case, namely, Powell II, should be dismissed because Plaintiff has improperly split
`his claim, by asserting a (cid:8220)new(cid:8221) legal theory for the alleged misappropriation of the Plaintiff(cid:8217)s
`(cid:8220)Safe Hands(cid:8221) unit, which should have been asserted in Powell I, if at all.
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`Dismissal is the appropriate remedy for this claim-splitting, because the Plaintiff has
`chosen to flout this Court(cid:8217)s orderly administration of its docket. This includes:
`• Filing Powell II in state court, instead of seeking to amend the complaint in
`Powell I, since it was predicated on the same facts, a move which smacks of
`forum shopping;
`• Disregarding the duty imposed by S.D. Fla. L.R. 3.8 to notify the Court and the
`parties of the existence of Powell II for several months, even though at the time it
`was filed (June 27, 2008), Powell I was set on a trial calendar that was 37 days
`away (August 4, 2008 trial setting). Notably, Plaintiff(cid:8217)s counsel failed to reveal
`the existence of Powell II when securing Defendant(cid:8217)s counsel(cid:8217)s consent to a joint
`motion for continuance;
`• Concealing the existence of Powell II until September 30, 2008, when Plaintiff(cid:8217)s
`counsel provided Industriaplex(cid:8217)s counsel with a copy of the state court action for
`the first time (at this point in time, Powell I was set for trial on the Court(cid:8217)s
`October 6, 2008 trial calendar, and thus the trial setting was less than one week
`away).
`While some courts have considered other remedies, such as staying the later filed action,
`Industriaplex respectfully submits that the above described conduct of Plaintiff and his counsel
`militates in favor of the dismissal of Powell II as the appropriate remedy. As confirmed by the
`Plaintiff in his memorandum, (cid:8220)claim-splitting is related to the district court(cid:8217)s ability to manage
`its own docket and the decision to dismiss on that ground is within the discretion of the district
`court.(cid:8221) Brady v. UBS Financial Services, Inc., 538 F.3d 1319, 1327 (10th Cir. 2008). Pl. Memo.
`at page 2. Accordingly, this Court would act well within its discretion to dismiss Powell II.
`B. The Plaintiff(cid:8217)s Memorandum in Opposition is Factually and Legally Flawed,
`and Fails to Show Evidence of Any Genuine Issue of Material Fact.
`
`The crux of Plaintiff(cid:8217)s memorandum in opposition1 to the motion for summary judgment
`filed by Industriaplex is that: (1) identity of the parties is lacking, (2) identity of the claims is
`lacking, relying on the (cid:8220)primary right and duty(cid:8221) test, and (3) consolidation of the two cases is a
`more appropriate remedy. To the contrary, the same parties are involved in the two cases; there
`
`
`1 The memorandum in opposition relies on two unpublished opinions, Twaddle v. Diem, 200
`Fed.Appx. 435 (6th Cir. 2006), and Soro v. Citigroup, 287 Fed.Appx. 57 (11th Cir. 2008).
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`is indeed an identity of claims under the relevant Eleventh Circuit standards; and, dismissal is the
`appropriate remedy, because the claim for misappropriation of trade secrets will be precluded
`upon the resolution of Powell I. Consolidation is an inappropriate remedy, because Plaintiff has
`chosen to flout the orderly administration of this Court(cid:8217)s docket, by having filed Powell II in
`state court, without properly notifying the Court and the parties, and then withholding the service
`of same for several months.
`1. Identity of the Parties
`The Plaintiff has argued that an identity of the parties is lacking herein, by virtue of the
`existence of Home Depot as a Defendant in both cases, with a misleading citation to two cases
`that are factually inapposite. This argument strains credulity, since the state law claim pertinent
`here in Powell I was asserted against Industriaplex, as was the later-filed state law claim in
`Powell II. Nevertheless, Defendant would note that the motion for summary judgment based on
`claim-splitting was filed solely on behalf of Defendant Industriaplex. The Plaintiff being unable
`to cite any authority to the contrary, this unfounded assertion does not serve to preclude the entry
`of summary judgment herein.
`2. Identity of the Claims
`To attempt to persuade this Court that the claims in Powell I and Powell II are not subject to
`claim preclusion, the Plaintiff relies heavily on an Eleventh Circuit case, Manning v. City of
`Auburn, which is distinguishable from the instant case. 953 F.2d 1355 (11th Cir. 1992). The
`Manning decision is distinguishable because, therein, the later-filed claim was based on
`operative facts that occurred after the filing of the first claim, and thus the second action was not
`subject to claim preclusion, as recognized by a later decision from the Eleventh Circuit:
`In Manning, we considered a situation in which a plaintiff elected not to
`participate in an employment discrimination class action but instead brought a
`second suit alleging employment discrimination against the same defendant. The
`operative facts that gave rise to the plaintiff's claims for discrimination had not
`occurred when the class filed its claim but some of those facts occurred before the
`district court dismissed the plaintiff from the class action. The plaintiff could have
`presented her claims in the class action by filing a supplemental pleading or by
`participating in discovery in that case. We observed, however, that the doctrine of
`res judicata does not punish a plaintiff for exercising her option not to supplement
`the pleadings with an after-acquired claim. We reasoned that the parties frame the
`scope of litigation at the time the complaint is filed and that a judgment is only
`conclusive regarding the matters that the parties might have litigated at that time
`but not regarding "new rights acquired; pending the action which might have
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`Case 0:08-cv-61862-DTKH Document 33 Entered on FLSD Docket 02/09/2009 Page 8 of 12
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`been, but which were not, required to be litigated." Id. (internal quotations
`omitted). We do not believe that the res judicata preclusion of claims that "could
`have been brought" in earlier litigation includes claims which arise after the
`original pleading is filed in the earlier litigation. Instead, we believe that, for res
`judicata purposes, claims that "could have been brought" are claims in existence
`at the time the original complaint is filed or claims actually asserted (cid:8230) in the
`earlier action.Id. (emphasis added) (footnote omitted) (citing Commercial Box &
`Lumber Co. v. Uniroyal, Inc., 623 F.2d 371, 374 n.2 (5th Cir. 1980)).
`
`Kaiser Aerospace & Elec. Corp. v. Teledyne Indus. (In re Piper Aircraft Corp.), 244 F.3d 1289,
`1298 (11th Cir. Fla. 2001). Here, it cannot be said that the Plaintiff(cid:8217)s later-filed claim for
`misappropriation of trade secrets is based on facts that occurred after the filing of the complaint
`in Powell I (which was filed on May 17, 2007). To the contrary, the complaints in both Powell I
`and Powell II are based on facts that occurred in 2004.
`
`While the Manning decision discussed claim preclusion in terms of (cid:8220)primary right(cid:8221) and
`(cid:8220)primary duty(cid:8221) in a passage quoted by the Plaintiff, the language which follows the Plaintiff(cid:8217)s
`citation supports the Defendant(cid:8217)s argument in favor of summary judgment:
`Res judicata applies "not only to the precise legal theory presented in the previous
`litigation, but to all legal theories and claims arising out of the same 'operative
`nucleus of fact.'" Hunt, 891 F.2d at 1561 (despite variations in legal theories used
`and remedies sought, second suit barred because wrongful act in both cases was
`flying Confederate flag atop state capitol) (quoting Olmstead v. Amoco Oil Co.,
`725 F.2d 627, 632 (11th Cir.1984)); Jaffree v. Wallace, 837 F.2d 1461, 1468
`(11th Cir.1988) (second suit barred because "both cases raised first amendment
`(free exercise and establishment clause) challenges to use of textbooks and
`teachings on various subjects"); Nilsen v. City of Moss Point, 701 F.2d 556, 560
`(5th Cir.1983) (section 1983 action against city that refused to hire plaintiff as
`firefighter due to her sex precluded by earlier Title VII action on same facts).
`
`
`Manning, 953 F.3d at 1358. Regardless of the language utilized by the Manning Court, it is
`evident that, in the Eleventh Circuit, where a later-filed action is based on (cid:8220)the same nucleus of
`operative facts(cid:8221), such as is the case here, claim preclusion principles will serve to bar the later-
`filed action. Id.
`3. Dismissal is the appropriate remedy
`Dismissal, or the entry of summary judgment, is the appropriate remedy for the Plaintiff(cid:8217)s
`claim-splitting, because the Plaintiff has disregarded this Court(cid:8217)s orderly administration of its
`docket, as described in this memorandum. The fact that the two actions are now before this
`Court is not due to a (cid:8220)fortuitous circumstance(cid:8221), as the Plaintiff would have this Court believe.
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`Nor should credence be given to Plaintiff(cid:8217)s argument that (cid:8220)this is not an instance in which
`Plaintiff employed such a tactic to circumvent a rule of procedure or court order.(cid:8221) Pl. Memo. at
`P. 10. The Plaintiff attempted to avoid this Court by filing Powell II in state court. As stated
`previously, Powell II was filed 37 days before a trial setting in Powell I. However, despite the
`Plaintiff(cid:8217)s obligation to bring the pendency of this related action to the attention of the Court and
`the parties, the Plaintiff kept it secret from Industriaplex for over three months, until the law firm
`representing the Plaintiff provided a copy of the state court action to Industriaplex(cid:8217)s counsel, on
`September 30, 2008. At this point in time, Powell I was on an October 6, 2008 trial setting, less
`than one week away.
`Thereafter, in order to attempt to bring this matter before this Court, the Defendants
`removed Powell II from state court to the Southern District of Florida. The Court(cid:8217)s decision to
`accept transfer from Judge Dimitrouleas was the final step in bringing Powell II before this
`Court. On the same date that this Court accepted the transfer of this case, all pending motions to
`amend in Powell I were denied, including a motion to amend filed by the Plaintiff in May 2008.
`Despite this, the Plaintiff has also asserted that (cid:8220)Industriaplex has not insinuated that such an
`amendment would or should have been denied.(cid:8221) Pl. Memo. at P. 10.
`The Plaintiff proposes undermines his argument by suggesting that this Court should
`remedy the claim-splitting by consolidating the two actions because (cid:8220)Rule 42(a) provides that
`consolidation is acceptable when actions involving a common question of law or fact are pending
`before the Court.(cid:8221) Pl. Memo. at P. 10. It is exactly because the two actions share common facts
`(cid:8211) as illustrated by a comparison of the two complaints (cid:8211) that the later-filed action should be
`precluded. The Plaintiff should have brought his action for misappropriation of trade secrets, if
`at all, in Powell I, since it arose from the same nucleus of operative facts.
`While some courts have considered other remedies, such as staying the later filed action,
`Industriaplex respectfully submits that the above described conduct of Plaintiff and his counsel
`militates in favor of the dismissal of Powell II as the appropriate remedy. As confirmed by the
`Plaintiff in his memorandum, (cid:8220)claim-splitting is related to the district court(cid:8217)s ability to manage
`its own docket and the decision to dismiss on that ground is within the discretion of the district
`court.(cid:8221) Brady v. UBS Financial Services, Inc., 538 F.3d 1319, 1327 (10th Cir. 2008). Pl. Memo.
`at page 2. Accordingly, this Court would act well within its discretion to dismiss Powell II.
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`III. CONCLUSION
`There can be little doubt that Plaintiff(cid:8217)s later-filed action (Powell II) is based on the same
`
`facts, or transactions, that served as the basis for Plaintiff(cid:8217)s state law claims in Powell I. A
`comparison of the complaints filed in both actions reveals that they are predicated on allegations
`that Industriaplex copied Plaintiff(cid:8217)s (cid:8220)Safe Hands(cid:8221) unit in the year 2004. In Powell I, the Plaintiff
`asserted a claim for tortious interference with an advantageous business relationship, which
`resulted in a dismissal on the merits upon Industriaplex(cid:8217)s 12(b)(6) motion to dismiss. In Powell
`II, the Plaintiff asserts the same factual predicate (cid:8211) the alleged copying of his device by
`Industriaplex in 2004 (cid:8211) but this time, in support of a claim for misappropriation of trade secrets.
`This is nothing more than a classic example of claim-splitting. Because of the pendency of the
`two actions, the relevant inquiry is assuming the first action to be final, whether the second
`action would be precluded by principles of res judicata and claim preclusion. Hartsel Springs
`Ranch of Colo., Inc. v. Bluegreen Corp.,296 F.3d 982, 987, n. 1 (10th Cir. 2002). There being no
`genuine issue of material fact that Powell II is predicated on the same facts as Powell I, summary
`judgment is warranted in favor of Defendant Industriaplex, based on well-settled Eleventh
`Circuit law. See, e.g., Citibank, N.A. v. Data Lease Financial Corp., 904 F.2d 1498, 1503 (11th
`Cir. Fla. 1990), and Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999).
`
`Summary judgment is also appropriate because Plaintiff(cid:8217)s (cid:8220)Safe Hands(cid:8221) device simply
`cannot and does not constitute a trade secret, and because the Florida claim is time barred.
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`Dated: February 9, 2009
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` Miami, Florida
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`Respectfully submitted,
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` s/Oliver Alan Ruiz
`John Cyril Malloy, III
`Florida Bar No. 964,220
`jcmalloy@malloylaw.com
`Oliver Alan Ruiz
`Florida Bar No. 524,786
`oruiz@malloylaw.com
`Malloy & Malloy, P.A.
`2800 S.W. 3rd Avenue
`Miami, FL 33129
`Telephone: (305) 858-8000
`Facsimile: (305) 858-0008
`
`Attorneys for Defendant
`Industriaplex, Inc.
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` By:
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`10
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`Case 0:08-cv-61862-DTKH Document 33 Entered on FLSD Docket 02/09/2009 Page 11 of 12
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
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`CASE NO. 08-61862-CIV-HURLEY/HOPKINS
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`MICHAEL S. POWELL,
`an individual,
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`Plaintiff,
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`vs.
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`THE HOME DEPOT, U.S.A., INC.,
`a Delaware
`corporation; and
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`INDUSTRIAPLEX, INC., a Delaware
`corporation
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`Defendants.
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`___________________________________
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`
`Certificate of Service
`
`
`I hereby certify that on February 9, 2009, I electronically filed the foregoing document
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`with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being
`served this day on all counsel of record or pro se parties identified on the attached Service List in
`the manner specified, either via transmission of Notices of Electronic Filing generated by
`CM/ECF or in some other authorized manner for those counsel or parties who are not authorized
`to receive electronically Notice of Electronic Filing.
`
`
`s/Oliver Alan Ruiz
`Oliver Alan Ruiz
`Florida Bar No. 524,786
`oruiz@malloylaw.com
`Malloy & Malloy, P.A.
`2800 S.W. 3rd Avenue
`Miami, FL 33129
`Telephone: (305) 858-8000
`Facsimile: (305) 858-0008
`Attorneys for Defendant
`Industriaplex, Inc.
`
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`11
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`Case 0:08-cv-61862-DTKH Document 33 Entered on FLSD Docket 02/09/2009 Page 12 of 12
`
`SERVICE LIST
`MICHAEL POWELL
`v.
`THE HOME DEPOT et al.
`
`CASE NO. 08-61862-CIV-HURLEY/HOPKINS
`United States District Court, Southern District of Florida
`
`Peter G. Herman, Esq.
`pgh@trippscott.com
`Alexander D. Brown
`adb@trippscott.com
`Tripp Scott, P.A.
`110 SE Sixth Street
`Fifteenth Floor
`Ft. Lauderdale, Florida 33301
`Telephone: (954) 525.7500
`Facsimile: (954) 761-8475
`Attorney for Plaintiff
`Michael S. Powell
`Notices of Electronic Filing generated by CM/ECF
`
`John Cyril Malloy, III
`jcmalloy@malloylaw.com
`Malloy & Malloy, P.A.
`Oliver Alan Ruiz
`oruiz@malloylaw.com
`2800 S.W. 3rd Avenue
`Miami, FL 33129
`Telephone: (305) 858-8000
`Facsimile: (305) 858-0008
`Attorneys for Defendant
`Industriaplex, Inc.
`Notices of Electronic Filing
`generated by CM/ECF
`
`Edward A. Moss, Esq.
`emoss@shb.com
`Eileen Moss, Esq.
`elmoss@shb.com
`Heather Cohen Szkaradek
`hcohen@shb.com
`Shook, Hardy & Bacon LLP
`2400 Miami Center
`201 S. Biscayne Blvd.
`Miami, Florida U.S.A.
`33131-4332
`Telephone: (305) 960-6929
`Facsimile: (305) 358-7470
`Attorneys for Defendant
`The Home Depot, USA, Inc.
`Notices of Electronic Filing
`generated by CM/ECF
`
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`12
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