`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`
`CASE NO. 13-61582-CIV-COHN/SELTZER
`
`STACEY MATTOCKS,
`
`Plaintiff,
`
`v.
`
`BLACK ENTERTAINMENT
`TELEVISION LLC,
`
`Defendant.
`__________________________/
`
`ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
`
`THIS CAUSE is before the Court on Defendant’s Motion for Summary Judgment
`
`[DE 70] (“Motion”). The Court has carefully reviewed the Motion and all related filings
`
`and is otherwise fully advised in the premises.1
`
` Also pending are several other motions: Defendant’s Motion to Dismiss
`1
`Second Amended Complaint [DE 55], Plaintiff’s Motion to Exclude or Limit Testimony
`and Opinions of Defendant’s Expert Guy Hagen [DE 67], Plaintiff’s Motion to Exclude or
`Limit Testimony and Opinions of Defendant’s Expert Aram Sinnreich [DE 68],
`Defendant’s Motion to Exclude the Report and Testimony of Fernando Torres [DE 69],
`and Plaintiffs’ Omnibus Motion to Strike Portions of Defendant’s Reply in Support of
`Motion to Exclude the Report and Testimony of Fernando Torres and Defendant’s
`Reply in Support of Motion for Summary Judgment, or in the Alternative, Motion for
`Leave to File Sur-Replies [DE 91]. Defendant’s Motion to Dismiss generally raises the
`same arguments presented in the Motion for Summary Judgment. But the Court finds it
`more appropriate to decide these issues based on the summary-judgment record rather
`than on the pleadings alone. Further, because Defendant is entitled to summary
`judgment without regard to the disputed expert testimony, the Court need not resolve
`the parties’ expert-related motions. Accordingly, all motions other than the Motion for
`Summary Judgment will be denied as moot.
`
`
`
`Case 0:13-cv-61582-JIC Document 101 Entered on FLSD Docket 08/20/2014 Page 2 of 16
`
`I.
`
`Background
`
`A.
`
`Facts2
`
`From 2006 to 2009, the CW Network (“CWN”) broadcasted the television series
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`The Game, a dramatic comedy about the lives of professional football players and their
`
`wives and girlfriends (the “Series”). See DE 71 at 1, ¶ 1 (Def.’s Statement of Material
`
`Facts); DE 83 at 1, ¶ 1 (Pl.’s Resp. to Def.’s Statement of Material Facts). After CWN
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`cancelled the Series in 2009, Defendant Black Entertainment Television LLC (“BET”)
`
`acquired syndication rights to televise seasons one through three of the Series.
`
`See DE 71 at 1, ¶¶ 1-2; DE 83 at 1, ¶¶ 1-2. BET began airing re-runs of the Series in
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`2010. See DE 71 at 1, ¶ 2; DE 83 at 1, ¶ 2. In March of that year, BET acquired an
`
`exclusive license to produce new episodes of the Series, premiering in January 2011.
`
`See DE 71 at 1, ¶ 3; DE 83 at 1, ¶ 3. BET has since televised at least three new
`
`seasons of the Series. See id.
`
`Facebook is an “online social network where members develop personalized
`
`web profiles to interact and share information with other members.” Lane v. Facebook,
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`Inc., 696 F.3d 811, 816 (9th Cir. 2012). The shared information “varies considerably,
`
`and it can include news headlines, photographs, videos, personal stories, and activity
`
`updates.” Id. Typically, members “publish information they want to share to their
`
`personal profile, and the information is thereby broadcasted to the members’ online
`
`‘friends’ (i.e., other members in their online network).” Id.
`
` In her Response to Defendant’s Statement of Material Facts [DE 83],
`2
`Plaintiff disputes certain facts in that Statement without citing any supporting evidence.
`See S.D. Fla. L.R. 56.1(a)(2), (b). To the extent those facts are consistent with the
`record, they are deemed admitted. See id.
`
`2
`
`
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`Case 0:13-cv-61582-JIC Document 101 Entered on FLSD Docket 08/20/2014 Page 3 of 16
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`Facebook “Fan” Pages are created with a specific focus—such as a corporate
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`brand, place, organization, or public figure—allowing fans of that subject to express
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`support for or interest in the topic. See DE 70-11 at 1 (“Facebook Pages Terms”).
`
`Unlike Facebook members’ personal profiles, Fan Pages can be viewed by anyone who
`
`visits them. See id.; DE 71 at 2, ¶ 5; DE 83 at 1, ¶ 5. Facebook treats officially
`
`sponsored Fan Pages differently than unofficial Fan Pages. See DE 71 at 2, ¶ 6;
`
`DE 83 at 1, ¶ 6. According to Facebook’s Terms of Service,
`
`A.
`
`B.
`
`A Page for a brand, entity (place or organization), or public figure
`may be administered only by an authorized representative of that
`brand, entity (place or organization) or public figure (an “official
`Page”).
`
`Any user may create a Page to express support for or
`interest in a brand, entity (place or organization), or public
`figure, provided that it does not mislead others into thinking
`it is an official Page, or violate someone’s rights. If your
`Page is not the official Page of a brand, entity (place or
`organization) or public figure, you must:
`
`i.
`
`ii.
`
`not speak in the voice of, or post content as though it
`was coming from, the authorized representative of the
`Page’s subject matter; and
`
`make clear that the Page is not the official Page of
`the brand, entity (place or organization) or public
`figure.
`
`DE 70-11 at 1.
`
`Facebook users can “like” a Facebook Page (including a Fan Page), or specific
`
`postings on a Page, by clicking a “like” button supplied by Facebook. See DE 71 at 2,
`
`¶ 7; DE 83 at 1, ¶ 7. As one appellate court has explained,
`
` “Liking” on Facebook is a way for Facebook users to
`share information with each other. The “like” button, which
`is represented by a thumbs-up icon, and the word “like”
`appear next to different types of Facebook content. Liking
`something on Facebook “is an easy way to let someone
`
`3
`
`
`
`Case 0:13-cv-61582-JIC Document 101 Entered on FLSD Docket 08/20/2014 Page 4 of 16
`
`know that you enjoy it.” What does it mean to “Like”
`something?, Facebook, http://www.facebook.com/help/
`452446998120360 (last visited Sept. 17, 2013). Liking a
`Facebook Page “means you are connecting to that Page.
`When you connect to a Page, it will appear in your timeline
`and you will appear on the Page as a person who likes that
`Page. The Page will also be able to post content into your
`News Feed.” What’s the difference between liking an item a
`friend posts and liking a Page?, Facebook, http://www.
`facebook.com/help/452446998120360 (last visited Sept. 17,
`2013).
`
`Bland v. Roberts, 730 F.3d 368, 385 (4th Cir. 2013). Any Facebook user who “likes” a
`
`specific Page or posted content remains in control of his or her “like” at all times and is
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`free to “unlike” the Page or content by clicking an “unlike” button provided by Facebook.
`
`See DE 71 at 3, ¶ 8; DE 83 at 2, ¶ 8.
`
`In 2008, when the Series was airing on CWN, Plaintiff Stacey Mattocks created a
`
`Facebook Page focusing on the Series (the “FB Page”). See DE 71 at 3, ¶ 9; DE 83 at
`
`2, ¶ 9. Due to Facebook’s policies, Mattocks could not, and did not, post any BET-
`
`owned or third-party-owned content from the Series. See DE 71 at 3, ¶ 10; DE 83 at 2,
`
`¶ 10. Nor could Mattocks hold her FB Page out to the public as the “official” Series Fan
`
`Page sponsored or operated by BET. See id.
`
`Around October 2010, BET contacted Mattocks after learning that she had
`
`created a Fan Page for the Series. See DE 71 at 3, ¶ 12; DE 83 at 2, ¶ 12. In January
`
`2011, BET hired Mattocks to perform part-time work for the company, paying her thirty
`
`dollars an hour. See DE 71 at 3-4, ¶¶ 13, 19; DE 83 at 2-3, ¶¶ 13, 19. Mattocks’s
`
`duties included managing the FB Page. See DE 71 at 3, ¶ 14; DE 83 at 2, ¶ 14.
`
`Thereafter, BET prominently displayed its trademarks and logos in the top
`
`header of the FB Page, encouraged BET’s viewers to “like” the Page, and provided
`
`4
`
`
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`Case 0:13-cv-61582-JIC Document 101 Entered on FLSD Docket 08/20/2014 Page 5 of 16
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`Mattocks with exclusive content, including links to video clips and photographs, to post
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`on the Page. See DE 71 at 3-4, ¶ 15; DE 83 at 2, ¶ 15. BET regularly instructed
`
`Mattocks to post, or not to post, certain information on the Page. See DE 70-13 at 30-
`
`40 (Mattocks Dep., Exs. 42, 48-51, 53); DE 83-16 at 1-3, DE 83-25 at 1-3 (Lespinasse
`
`Dep., Exs. 16, 25). Mattocks posted most of the content on the FB Page, but BET
`
`employees also occasionally posted material. See DE 71 at 4, ¶ 16; DE 83 at 2-3, ¶ 16.
`
`Too, Mattocks helped BET protect its intellectual property by notifying the company
`
`when she discovered third parties streaming episodes of the Series without permission.
`
`See DE 71 at 4, ¶ 24; DE 83 at 4, ¶ 24. While Mattocks worked for BET, the number of
`
`“likes” on the FB Page grew from around two million to over six million. See DE 71 at 4,
`
`¶ 20; DE 83 at 3, ¶ 20.
`
`In February 2011, BET and Mattocks entered into a Letter Agreement. See DE
`
`70-13 at 12 (Mattocks Dep., Ex. 14). BET agreed not to exclude Mattocks from the
`
`Page by changing her administrative rights. See id. In exchange, Mattocks granted
`
`BET administrative access to the FB Page and agreed that BET could “update the
`
`content on the Page from time to time as determined by BET in its sole discretion.” Id.
`
`Mattocks admits that these terms entitled BET to “full access” to the Page “in every
`
`respect.” DE 70-1 at 13 (Mattocks Dep. at 92).
`
`After signing the Letter Agreement, the parties discussed the possibility of BET
`
`employing Mattocks full-time. See DE 71 at 5, ¶ 27; DE 83 at 4-5, ¶ 27. During the
`
`course of these discussions, in June 2012, Mattocks informed BET that she would
`
`“restrict BET’s administrative access” to the FB Page “[u]ntil such time as we can reach
`
`an amicable and mutually beneficial resolution” concerning her employment. DE 70-13
`
`at 17 (Mattocks Dep., Ex. 26). The same day, Mattocks demoted BET’s administrative
`
`5
`
`
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`Case 0:13-cv-61582-JIC Document 101 Entered on FLSD Docket 08/20/2014 Page 6 of 16
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`access to the Page. See DE 71 at 5, ¶ 28; DE 83 at 5, ¶ 28. Mattocks concedes that,
`
`because of this demotion, BET was no longer free to post content on the Page:
`
`Q:
`
`A:
`
`Q:
`
`Prior to demoting BET, they were able to post on their
`own without going through you in any way; isn’t that
`true?
`
`That is correct.
`
`And after you demoted them, they were unable to
`post on their own without going through you; isn’t that
`true?
`
`A:
`
`That is correct.
`
`DE 70-1 at 12 (Mattocks Dep. at 86-87).
`
`Following its loss of full access to the FB Page, on August 27, 2012, BET asked
`
`Facebook to “migrate” fans of the Page to another official Series Page created by BET.
`
`See DE 70-8 (Decl. of Tia Carter-Jenkins & attached e-mails); DE 70-9 (Decl. of Jean
`
`Pierre Lespinasse & attached e-mails). That same day, BET sent Mattocks a letter
`
`stating in relevant part:
`
` We regret to inform you that your actions to restrict and,
`at times, completely block BET’s access to the Facebook
`Page that you created for The Game (the “Game FB Page”)
`materially breaches the [L]etter [A]greement . . . between us,
`dated February 12, 2011 which granted BET rights to the
`Game FB Page. Accordingly, the Letter Agreement is
`hereby terminated effective immediately.
`
` Further, BET hereby rescinds any and all rights that may
`have been previously granted to you directly, implicitly or
`otherwise, to use BET intellectual property (“BET Material”).
`You are respectfully directed to cease and desist from using
`all BET Material in any and all media immediately and
`further advised that BET expressly reserves its various rights
`and remedies as copyright and trademark owner in
`connection with willful infringement of our intellectual property.
`
`DE 70-13 at 14 (Mattocks Dep., Ex. 15).
`
`6
`
`
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`Case 0:13-cv-61582-JIC Document 101 Entered on FLSD Docket 08/20/2014 Page 7 of 16
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`In response to BET’s migration request, Facebook reviewed the FB Page to
`
`determine whether it appeared to officially represent the brand owner, BET. See id.;
`
`DE 71 at 6, ¶ 35; DE 83 at 6, ¶ 35. Based on this review, Facebook granted BET’s
`
`request and migrated the “likes” associated with the FB Page to the other BET-
`
`sponsored page. See id. Facebook also shut down the FB Page. See DE 71 at 7,
`
`¶ 41; DE 83 at 7, ¶ 41. BET separately asked Twitter, another social-networking
`
`service, to disable the account that Mattocks was using to promote the Series for BET.
`
`See DE 71 at 7, ¶ 40; DE 83 at 7, ¶ 40. That request too was granted. See DE 83-11
`
`at 23 (Lespinasse Dep. at 87-88).
`
`B.
`
`Procedural History
`
`On July 22, 2013, Mattocks brought this diversity action against BET. See DE 1.
`
`In her current Second Amended Complaint, Mattocks alleges that BET wrongfully
`
`deprived her of certain rights by disabling the FB Page and her Twitter account.
`
`See DE 46. Specifically, Mattocks claims that BET tortiously interfered with contractual
`
`relationships she had with Facebook and Twitter (Counts I and II), that BET breached
`
`the parties’ Letter Agreement (Count III), that BET breached a duty of good faith and
`
`fair dealing toward Mattocks (Count IV), and that BET converted a business interest she
`
`held in the FB Page (Count V). See id. at 8-13. As a result, Mattocks contends, she
`
`lost potential income from other companies that pay her for redirecting users from
`
`several websites she maintains, including the FB Page. See id. at 7-8; DE 71 at 7-8,
`
`¶¶ 44-46; DE 83 at 7-8, ¶¶ 44-46.
`
`On June 27, 2014, BET filed its Motion for Summary Judgment. See DE 70.
`
`Mattocks filed a Response opposing the Motion, and BET replied. See DE 84; DE 87.
`
`7
`
`
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`Case 0:13-cv-61582-JIC Document 101 Entered on FLSD Docket 08/20/2014 Page 8 of 16
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`In connection with their summary-judgment briefs, the parties have also filed factual
`
`statements and supporting evidence.
`
`II.
`
`Discussion
`
`A.
`
`Summary Judgment Standards
`
`The Court may grant summary judgment “if the movant shows that there is no
`
`genuine dispute as to any material fact and the movant is entitled to judgment as a
`
`matter of law.” Fed. R. Civ. P. 56(a). The moving party “always bears the initial
`
`responsibility of informing the district court of the basis for its motion, and identifying
`
`those portions of [the record] which it believes demonstrate the absence of a genuine
`
`issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To satisfy
`
`this burden, the movant must point out to the Court that “there is an absence of
`
`evidence to support the nonmoving party’s case.” Id. at 325.
`
`After the movant has met its burden under Rule 56(a), the burden of production
`
`shifts, and the non-moving party “must do more than simply show that there is some
`
`metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith
`
`Radio Corp., 475 U.S. 574, 586 (1986). As Rule 56 explains, “[i]f a party fails to
`
`properly support an assertion of fact or fails to properly address another party’s
`
`assertion of fact . . . the court may . . . grant summary judgment if the motion and
`
`supporting materials—including the facts considered undisputed—show that the movant
`
`is entitled to it.” Fed. R. Civ. P. 56(e)(3). The non-moving party therefore “may not rest
`
`upon the mere allegations or denials in its pleadings” but instead must present “specific
`
`facts showing that there is a genuine issue for trial.” Walker v. Darby, 911 F.2d 1573,
`
`1576-77 (11th Cir. 1990).
`
`8
`
`
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`Case 0:13-cv-61582-JIC Document 101 Entered on FLSD Docket 08/20/2014 Page 9 of 16
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`Essentially, so long as the non-moving party has had an ample opportunity to
`
`conduct discovery, it must present affirmative evidence to support its claim.
`
`See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). “A mere ‘scintilla’ of
`
`evidence supporting the opposing party’s position will not suffice; there must be enough
`
`of a showing that the jury could reasonably find for that party.” Walker, 911 F.2d at
`
`1577. If the evidence offered by the non-moving party “is merely colorable, or is not
`
`significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at
`
`249-50 (citations omitted).
`
`The Court’s function at the summary-judgment stage is not to “weigh the
`
`evidence and determine the truth of the matter but to determine whether there is a
`
`genuine issue for trial.” Id. at 249. In so doing, the Court must view the facts in the
`
`light most favorable to the non-moving party and draw all reasonable inferences in that
`
`party’s favor. See Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006). The Court
`
`must also discern which issues are material: “Only disputes over facts that might affect
`
`the outcome of the suit under the governing law will properly preclude the entry of
`
`summary judgment. Factual disputes that are irrelevant or unnecessary will not be
`
`counted.” Anderson, 477 U.S. at 248.
`
`B.
`
`Analysis of BET’s Motion
`
`1.
`
`Tortious Interference
`
`Mattocks’s tortious-interference claims are based on her account agreements
`
`with Facebook and Twitter. See 46-3 (Facebook Statement of Rights and
`
`Responsibilities); DE 46-4 (Twitter Terms of Service). Mattocks alleges that BET was
`
`aware of these agreements and that, by directing the services to disable the FB Page
`
`9
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`
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`Case 0:13-cv-61582-JIC Document 101 Entered on FLSD Docket 08/20/2014 Page 10 of 16
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`and Twitter account “under false pretenses, BET intentionally and unjustifiable
`
`interfered with the contract[s].” DE 46 at 9. In its Motion, BET argues that Mattocks’s
`
`tortious-interference claims fail as a matter of law.
`
`“In Florida, the elements of tortious interference with a contractual relationship
`
`are: (1) the existence of a contract; (2) the defendant’s knowledge of the contract;
`
`(3) the defendant’s intentional procurement of the contract’s breach; (4) the absence of
`
`any justification or privilege; and (5) damages resulting from the breach.” U.S. Life Ins.
`
`Co. v. Logus Mfg. Corp., 845 F. Supp. 2d 1303, 1320 (S.D. Fla. 2012) (internal
`
`quotation marks omitted); see Mariscotti v. Merco Grp. at Akoya, Inc., 917 So. 2d 890,
`
`892 (Fla. 3d DCA 2005). Here, the parties’ arguments focus on the fourth element—
`3
`
`whether any justification or privilege supported BET’s requests to terminate the FB
`
`Page and Mattock’s Twitter account. For interference with a contract to be unjustified,
`
`“the interfering defendant must be a third party, a stranger to the business relationship.”
`
`Salit v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 742 So. 2d 381, 386 (Fla.
`
`4th DCA 1999). “A defendant is not a ‘stranger’ to a business relationship if the
`
`defendant ‘has any beneficial or economic interest in, or control over, that relationship.’”
`
`Palm Beach Cnty. Health Care Dist. v. Prof’l Med. Educ., Inc., 13 So. 3d 1090, 1094
`
`(Fla. 4th DCA 2009) (quoting Nimbus Tech., Inc. v. SunnData Prods., Inc., 484 F.3d
`
`1305, 1309 (11th Cir. 2007)). Thus, a party cannot be liable for tortious interference
`
`“when it has a supervisory interest in how the relationship is conducted or a potential
`
`financial interest in how a contract is performed.” Id. An exception to this rule exists
`
`“where malice is the sole basis for the interference”—that is, when the defendant is
`
` The parties agree, and the Court therefore assumes, that the substantive law
`3
`of Florida governs all claims in this action.
`
`10
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`
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`Case 0:13-cv-61582-JIC Document 101 Entered on FLSD Docket 08/20/2014 Page 11 of 16
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`“interfering solely out of spite, to do harm, or for some other bad motive.” Ernie Haire
`
`Ford, Inc. v. Ford Motor Co., 260 F.3d 1285, 1294 n.9 (11th Cir. 2001) (citations
`
`omitted). And “even where the defendant’s motive is not purely malicious, a tortious
`
`interference claim may succeed if improper methods were used.” KMS Rest. Corp. v.
`
`Wendy’s Int’l, Inc., 361 F.3d 1321, 1327 (11th Cir. 2004) (collecting Florida cases).
`
`The record in this case shows conclusively that BET was not a “stranger” to
`
`Mattocks’s user agreements with Facebook and Twitter. After BET hired her to work for
`
`the company, Mattocks used the FB Page and Twitter account to officially promote the
`
`Series for the network. Further, BET exercised control over the material that Mattocks
`
`posted. Mattocks points to various facts that she claims demonstrate BET’s intent to
`
`take away her rights to the FB Page. But the record establishes that BET’s requests to
`
`terminate the FB Page and Twitter account were motivated, at least in part, by Mattocks
`
`revoking BET’s full access to the FB Page. That action affected BET’s economic
`
`interests by depriving the network of control over its intellectual property on the Page
`
`and how the Series was officially promoted there. While BET may also have had other
`
`financial motives in disabling the Page and Twitter account, no record evidence shows
`
`that BET took these steps for purely malicious reasons. And though Mattocks claims
`
`that BET removed the Page and account “under false pretenses,” she has produced no
`
`substantial evidence that Facebook’s and Twitter’s decisions to shut down the services
`
`were ultimately based on anything other than the companies’ policies protecting brand
`
`owners’ rights. BET is therefore entitled to summary judgment on Mattocks’s tortious-
`
`interference claims.
`
`11
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`Case 0:13-cv-61582-JIC Document 101 Entered on FLSD Docket 08/20/2014 Page 12 of 16
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`2.
`
`Breach of Contract
`
`Mattocks contends that BET breached the Letter Agreement by “causing the
`
`removal of the FB Page” and thereby “excluding Mattocks from” the Page. DE 46 at 11.
`
`This act, Mattocks asserts, violates the Letter Agreement’s provision that “BET will not
`
`change the administrative rights to the Page to exclude you from the Page.” Id. at 10.
`
`BET responds that even if its removal of the Page breached this term of the agreement,
`
`Mattocks had already breached the agreement by demoting BET’s access to the Page.
`
`It is a fundamental principle of Florida contract law that a material breach by one
`
`party excuses performance by the other party. See Indem. Ins. Corp. of DC. v. Caylao,
`
`130 So. 3d 783, 786 (Fla. 1st DCA 2014) (citing 14 Steven Plitt et al., Couch on
`
`Insurance § 199.81 (3d ed. 2012)); see also Toyota Tsusho Am., Inc. v. Crittenden,
`
`732 So. 2d 472, 477 (Fla. 5th DCA 1999) (“When a nonbreaching party to a contract is
`
`confronted with a breach by the other party, the nonbreaching party may stop
`
`performance, treating the breach as a discharge of its contractual liability.”). A “material
`
`breach” goes “to the essence of the contract,” and not merely the “failure to perform
`
`some minor part” of the agreement. Covelli Family, L.P. v. ABG5, L.L.C., 977 So. 2d
`
`749, 752 (Fla. 4th DCA 2008) (internal quotation marks omitted).
`
`Here, the Letter Agreement essentially contained two mutual promises. BET
`
`agreed not to exclude Mattocks from the FB Page by changing her administrative rights.
`
`See DE 70-13 at 12. Mattocks granted BET full administrative access to the Page and
`
`agreed that BET could “update the content on the Page from time to time as
`
`determined by BET in its sole discretion.” Id.; see DE 70-1 at 13. It is clear that both of
`
`these terms—the only ones in the Letter Agreement—were essential to the contract
`
`and therefore material. After the Letter Agreement was executed, however, Mattocks
`
`12
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`Case 0:13-cv-61582-JIC Document 101 Entered on FLSD Docket 08/20/2014 Page 13 of 16
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`demoted BET’s access to the Page, preventing the network from posting content.
`
`See DE 70-1 at 12 DE 71 at 5, ¶ 28; DE 83 at 5, ¶ 28. That action by Mattocks
`
`materially breached the Letter Agreement, thereby excusing BET’s performance of its
`
`obligations under the contact. Accordingly, Mattocks cannot maintain a breach-of-
`
`contract claim based on BET’s later removal of the FB Page.
`
`3.
`
`Breach of Good Faith and Fair Dealing
`
`Mattocks further claims that, “[b]y causing the removal of the FB Page without
`
`providing Mattocks notice or an opportunity to cure her alleged breaches, BET
`
`breached its duty of good faith and fair dealing to Mattocks.” DE 46 at 12, ¶ 80.
`
`“Florida contract law recognizes the implied covenant of good faith and fair dealing in
`
`every contract.” Ins. Concepts & Design, Inc. v. Healthplan Servs., Inc., 785 So. 2d
`
`1232, 1234 (Fla. 4th DCA 2001) (per curiam). This covenant is “intended to protect the
`
`reasonable expectations of the contracting parties in light of their express agreement.”
`
`Id. (internal quotation marks omitted). Since the covenant is an implied one, it must
`
`“attach[] to the performance of a specific or express contractual provision.” Snow v.
`
`Ruden, McClosky, Smith, Schuster & Russell, P.A., 896 So. 2d 787, 792 (Fla. 2d DCA
`
`2005). Thus, “a claim for breach of the implied covenant of good faith and fair dealing
`
`cannot be maintained under Florida law absent an allegation that an express term of
`
`the contract has been breached.” Ins. Concepts & Design, 785 So. 2d at 1234;
`
`see Snow, 896 So. 2d at 792 (explaining that “the duty of good faith performance does
`
`not exist until a plaintiff can establish a term of the contract the other party was
`
`obligated to perform and did not”). This rule exists because “[a]llowing a claim for
`
`breach of the implied covenant of good faith and fair dealing where no enforceable
`
`13
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`Case 0:13-cv-61582-JIC Document 101 Entered on FLSD Docket 08/20/2014 Page 14 of 16
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`executory contractual obligation remains would add an obligation to the contract that
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`was not negotiated by the parties.” Ins. Concepts & Design, 785 So. 2d at 1235.
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`As discussed above in Part II.B.2, any obligation on BET’s part not to exclude
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`Mattocks from the FB Page was excused when she materially breached the Letter
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`Agreement by demoting BET’s access to the Page. Nor does the Letter Agreement
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`require BET to notify Mattocks of a breach and permit her to cure it. Mattocks cannot
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`now impose this obligation—which the parties did not bargain for—through a claim for
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`breach of good faith and fair dealing. See Progressive Am. Ins. Co. v. Rural/Metro
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`Corp. of Fla., 994 So. 2d 1202, 1207-08 (Fla. 5th DCA 2008) (holding that party could
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`not “use the implied duty of good faith to create a duty which does not otherwise exist”).
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`4.
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`Conversion
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`Last, Mattocks claims that BET converted a business interest she had in the
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`FB Page—namely, the “likes” that the Page had accumulated while she worked on it.
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`See DE 46 at 13, ¶ 85. Mattocks asserts that the “substantial interest in the FB Page
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`and the significant number of ‘Likes’ generated by Mattocks provided her with business
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`opportunities” with the companies that pay her for redirecting visitors to their sites. Id.
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`According to Mattocks, BET willfully deprived her of these opportunities when it asked
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`Facebook to transfer the “likes” from the FB Page to the other official Series Page.
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`See id. at 13, ¶¶ 86-88.
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`“Under Florida law, a conversion is an unauthorized act which deprives another
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`of his property permanently or for an indefinite time.” Fogade v. ENB Revocable Trust,
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`263 F.3d 1274, 1291 (11th Cir. 2001) (internal quotation marks omitted); see Mayo v.
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`Allen, 973 So. 2d 1257, 1258 (Fla. 1st DCA 2008) (per curiam). To prove a conversion
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`claim, a plaintiff must offer “facts sufficient to show ownership of the subject property
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`Case 0:13-cv-61582-JIC Document 101 Entered on FLSD Docket 08/20/2014 Page 15 of 16
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`and facts that the other party wrongfully asserted dominion over that property.”
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`Edwards v. Landsman, 51 So. 3d 1208, 1213 (Fla. 4th DCA 2011).
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`Based on the record, Mattocks cannot establish that she owns a property interest
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`in the “likes” on the FB Page. As explained in Part I.A, “liking” a Facebook Page simply
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`means that the user is expressing his or her enjoyment or approval of the content. At
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`any time, moreover, the user is free to revoke the “like” by clicking an “unlike” button.
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`So if anyone can be deemed to own the “likes” on a Page, it is the individual users
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`responsible for them. Cf. Bland, 730 F.3d at 385-86 (holding that public employee’s
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`“like” of political-campaign page was a protected form of free speech and expression).
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`Given the tenuous relationship between “likes” on a Facebook Page and the creator of
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`the Page, the “likes” cannot be converted in the same manner as goodwill or other
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`intangible business interests. See, e.g., Freeman v. Corbin (In re Estate of Corbin),
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`391 So. 2d 731, 732-33 (Fla. 3d DCA 1980).
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`Even if Mattocks could claim an ownership interest in the “likes” on the FB Page,
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`she cannot demonstrate that BET’s migration request was unauthorized or wrongful.
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`After Mattocks breached the Letter Agreement by limiting BET’s access to the Page,
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`BET asked Facebook to migrate the “likes” to the other official Series Page. Facebook
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`then reviewed the FB Page in accordance with its corporate-brand policies and
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`determined that BET’s request was valid. More, as already explained, no substantial
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`evidence shows that BET’s request violated any other legal duty to Mattocks.
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`III.
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`Conclusion
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`For the reasons discussed, it is hereby
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`ORDERED AND ADJUDGED as follows:
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`1.
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`Defendant’s Motion for Summary Judgment [DE 70] is GRANTED;
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`Case 0:13-cv-61582-JIC Document 101 Entered on FLSD Docket 08/20/2014 Page 16 of 16
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`2.
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`The following motions are DENIED AS MOOT: Defendant’s Motion to Dismiss
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`Second Amended Complaint [DE 55], Plaintiff’s Motion to Exclude or Limit
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`Testimony and Opinions of Defendant’s Expert Guy Hagen [DE 67], Plaintiff’s
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`Motion to Exclude or Limit Testimony and Opinions of Defendant’s Expert Aram
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`Sinnreich [DE 68], Defendant’s Motion to Exclude the Report and Testimony of
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`Fernando Torres [DE 69], and Plaintiffs’ Omnibus Motion to Strike Portions of
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`Defendant’s Reply in Support of Motion to Exclude the Report and Testimony of
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`Fernando Torres and Defendant’s Reply in Support of Motion for Summary
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`Judgment, or in the Alternative, Motion for Leave to File Sur-Replies [DE 91];
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`and
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`3.
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`The Court will enter a separate Final Judgment consistent with this Order.
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`DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
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`Florida, this 20th day of August, 2014.
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`Copies provided to:
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`Counsel of record via CM/ECF
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