Case 0:20-cv-60272-AHS Document 1 Entered on FLSD Docket 02/09/2020 Page 1 of 11
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF FLORIDA
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`Case No. 0:20-cv-60272
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`INNOVATIVE WEB VENTURES, INC.,
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`Plaintiff,
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`v.
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`INTERNATIONAL BUSINESS MACHINES
`CORPORATION,
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`Defendant.
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`COMPLAINT
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`Plaintiff Innovative Web Ventures, Inc. (“Plaintiff”) sues defendant International
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`Business Machines Corporation (“Defendant” or “IBM”), and alleges as follows:
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`THE PARTIES
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`1.
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`Plaintiff is a corporation organized and existing under the laws of the State of
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`Florida with its principal place of business located in Broward County, Florida.
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`2.
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`Defendant is a corporation organized and existing under the laws of the State of
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`New York with its principal place of business located in Armonk, New York. Defendant’s agent
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`for service of process is CT Corporation System, 1200 S. Pine Island Road, Plantation, FL
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`33324.
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`JURISDICTION AND VENUE
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`3.
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`This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(a)
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`because the matter in controversy exceeds $75,000.00, exclusive of interest and costs, and is
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`between citizens of different States.
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`4.
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`This Court has jurisdiction over Defendant because it has maintained sufficient
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`DESOUZA LAW, P.A.
`3111 N. UNIVERSITY DRIVE, SUITE 301 • CORAL SPRINGS, FL 33065
`TELEPHONE (954) 603-1340
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`Case 0:20-cv-60272-AHS Document 1 Entered on FLSD Docket 02/09/2020 Page 2 of 11
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`minimum contacts with Florida such that the exercise of personal jurisdiction over it would not
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`offend traditional notions of fair play and substantial justice. Further, Defendant is registered to
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`and is doing substantial business in the State of Florida and maintains a registered agent in the
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`State of Florida.
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`5.
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`Venue of this action is proper in this district because a substantial part of the
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`events or omissions giving rise to Plaintiff’s claims occurred in this district.
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`BACKGROUND
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`6.
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`Plaintiff is an information-technology and web development company that
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`provides licensed software and consulting services to its various clients. Plaintiff is the owner of
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`a software set that has been 15+ years plus in its evolution at a cost that exceeds more than $5
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`million to date.
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`7.
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`In its current implementation, the software set contains numerous features that
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`allow customers/licensees to conduct and automate various aspects of their business functions
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`such as (but not limited to) registering new customers, rewarding/incentivizing users, and
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`establishing promotional/marketing modules.
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`8.
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`Plaintiff modifies and licenses the software set to its customers to tailor the
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`software to customer needs. In its current implementation, the software set is licensed/utilized
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`by several commercial entities who in turn use the software to service tens of thousands of
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`individual customers.
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`9.
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`Defendant is a multinational information technology company with operations in
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`over 170 countries. Defendant produces and sells computer hardware, middleware and software,
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`and
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`provides hosting and consulting
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`services in
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`areas
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`ranging
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`from mainframe
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`computers to nanotechnology.
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`2
`DESOUZA LAW, P.A.
`3111 N. UNIVERSITY DRIVE, SUITE 301 • CORAL SPRINGS, FL 33065
`TELEPHONE (954) 603-1340
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`Case 0:20-cv-60272-AHS Document 1 Entered on FLSD Docket 02/09/2020 Page 3 of 11
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`10.
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`Defendant provides a cloud hosting service to Plaintiff for the Software. In basic
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`terms, that means Defendant hosts the Software on its own high-power servers such that when
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`Plaintiff licenses the Software to its customers, an actual copy of the Software is not transmitted
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`to customers but rather they access the Software through Defendant’s servers.
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`11.
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`Plaintiff does not retain a physical copy of the Software itself as development is
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`performed through remote access to Defendant’s servers. Plaintiff’s developers make changes
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`and updates to the Software in this manner which allows several developers to work on the
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`Software at any given time and generally results in greater security as there is one central
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`database (Defendant’s servers) hosting the Software.
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`12.
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`On or about November 21, 2019, Defendant sent a letter to Bluebeam Holdings,
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`LLC (Plaintiff’s predecessor) stating that Defendant was in the final stages of transitioning out of
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`legacy Verizon data centers (which is where the Software and data was hosted at the time).
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`13.
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`That letter stated that Defendant would cease to provide hosting services for the
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`Software beyond January 31, 2020. The letter requested that Plaintiff make arrangements to
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`migrate its software and data prior to January 31, 2020, but also recommended that Plaintiff
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`utilize Defendant’s own “IBM Cloud” service for its hosting.
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`14.
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`Both prior to and immediately following receipt of the November 21, 2019 letter,
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`Plaintiff was working closely with Defendant’s sales and development team to develop a
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`solution for migrating the Software and data to Defendant’s “IBM Cloud” service and for hosting
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`thereon.
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`15.
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`In connection therewith, on or about November 25, 2019, Defendant sent Plaintiff
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`a quotation for migration to and hosting on the “IBM Cloud” service. The quotation provided a
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`quote of approximately $19,968.00 annually for the aforementioned services.
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`3
`DESOUZA LAW, P.A.
`3111 N. UNIVERSITY DRIVE, SUITE 301 • CORAL SPRINGS, FL 33065
`TELEPHONE (954) 603-1340
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`Case 0:20-cv-60272-AHS Document 1 Entered on FLSD Docket 02/09/2020 Page 4 of 11
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`16.
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`The next day – on November 26, 2019 – Plaintiff signed Defendant’s “Firm Order
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`Letter” which confirmed Plaintiff’s agreement to the migration and hosting services.
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`17.
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`After signing the Firm Order Letter, Plaintiff was in constant communication with
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`Defendant’s sales and development team to ensure that the migration process was moving
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`forward according to schedule. Plaintiff was repeatedly assured – in both written and oral
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`communications – that everything was moving ahead according to schedule and that there were
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`no issues with the migration.
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`18.
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`By mid-January 2020, Plaintiff was becoming increasingly worried about the
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`January 31, 2020 deadline set forth in Defendant’s notice of non-renewal. Plaintiff repeatedly
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`reached out to Defendant’s sales and development team to obtain an update on the migration
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`status.
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`19.
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`On January 15, 2020, Defendant – through its representative Christian Ludtke –
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`responded to Plaintiff via text message as follows:
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`Got the code, request submitted
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`And just got notification the data centers extension was pushed to
`end of feb and your account has been marked as “migrating” so we
`should have no issues
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`20.
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`Defendant represented that the migration deadline had been extended to end of
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`February 2020 and that there were no issues with the prior January 31, 2020 deadline.
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`21.
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`Following the January 15, 2020 text message, Plaintiff stayed in communication
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`with Defendant to make sure the migration process was still proceeding accordingly and that
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`there were no issues with the migration. Plaintiff was repeatedly assured everything was
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`proceeding as scheduled.
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`22.
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`For example, on January 27, 2020, Defendant’s representative assured Plaintiff
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`4
`DESOUZA LAW, P.A.
`3111 N. UNIVERSITY DRIVE, SUITE 301 • CORAL SPRINGS, FL 33065
`TELEPHONE (954) 603-1340
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`Case 0:20-cv-60272-AHS Document 1 Entered on FLSD Docket 02/09/2020 Page 5 of 11
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`that the “migration team was being assembled” and that “all [was] progressing forward.”
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`23.
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`Despite Defendant’s repeated assertions, on Friday, February 7, 2020, all of
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`Plaintiff’s websites and access to Defendant’s servers suddenly went offline/became unavailable.
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`This included all of Plaintiff’s customers’ access to the servers and all implementations of the
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`Software.
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`24.
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`Plaintiff spent the day on February 7, 2020 trying to get an answer from various
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`representatives of Defendant. While Plaintiff was repeatedly assured that Defendant was trying
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`to figure out what happened and would get back to Plaintiff, no explanation was provided.
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`25.
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`As it turns out, Defendant’s representatives lied to Plaintiff when they represented
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`that the migration deadline had been extended through end of February 2020. In reality,
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`Plaintiff’s account with Defendant was deactivated on or about February 1, 2020 and
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`subsequently “decommissioned” on February 7, 2020.
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`26.
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`The “decommissioning” on February 7, 2020 was not an automated feature – a
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`representative of Defendant had to enter the command which then resulted in the permanent
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`deletion of all of Plaintiff’s Software and data that was hosted on Defendant’s servers. This was
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`done
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`intentionally notwithstanding numerous
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`representations, statements, and written
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`communications from Defendant that the migration process was ongoing and had been extended
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`through the end of February 2020.
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`27.
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`Plaintiff is now left without another copy of the Software or its associated data as
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`Defendant’s actions resulted in the permanent deletion thereof. This means that approximately
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`15+ years of development were erased in an instant and tens of thousands of end-users are now
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`wholly unable to utilize the Software as all access thereto has been cut off.
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`28.
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`To date, Defendant has been completely silent in responding to Plaintiff with
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`5
`DESOUZA LAW, P.A.
`3111 N. UNIVERSITY DRIVE, SUITE 301 • CORAL SPRINGS, FL 33065
`TELEPHONE (954) 603-1340
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`Case 0:20-cv-60272-AHS Document 1 Entered on FLSD Docket 02/09/2020 Page 6 of 11
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`respect to the deletion and instead appears to be focusing on damage-control through an ever-
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`growing internal e-mail chain pondering who specifically at Defendant is to blame for
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`Defendant’s conduct in deleting the Software and associated data.
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`29.
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`As a result of Defendant’s intentional and/or grossly negligent conduct and
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`reckless disregard for Plaintiff’s property, Plaintiff has incurred staggering losses. These include
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`the loss of all access to and use of the Software which itself has a development cost of over $5
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`million. Between development costs, current losses of license fees/customers, and future losses,
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`Plaintiff estimates its total direct losses to be, at minimum, $75 million - $150 million.
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`30.
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`All conditions precedent to the filing of this action have been performed,
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`occurred, or been waived.
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`COUNT ONE – BREACH OF CONTRACT
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`Plaintiff re-alleges and incorporates paragraphs 1 through 30 as set forth above.
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`On or about November 26, 2019, Plaintiff and Defendant entered into a valid,
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`31.
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`32.
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`legally enforceable contract (as evidenced by Defendant’s November 25, 2019 quotation and
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`Plaintiff’s November 26, 2019 signature of Defendant’s Firm Order Letter).
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`33.
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`Pursuant to the parties’ November 26, 2019 contract, Plaintiff agreed to pay to
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`Defendant approximately $19,968.00 annually and Defendant agreed to migrate Plaintiff’s
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`Software from its then-hosting on Verizon legacy servers to Defendant’s “IBM Cloud” server.
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`34.
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`35.
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`Plaintiff fully performed each of its obligations under the parties’ contract.
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`Defendant materially breached the parties’ contract by failing to migrate the
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`Software from its Verizon legacy servers to its “IBM Cloud” server and by deleting the
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`Software/associated data entirely.
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`36.
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` As a direct and proximate result of Defendant’s breach of contract, Plaintiff has
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`6
`DESOUZA LAW, P.A.
`3111 N. UNIVERSITY DRIVE, SUITE 301 • CORAL SPRINGS, FL 33065
`TELEPHONE (954) 603-1340
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`Case 0:20-cv-60272-AHS Document 1 Entered on FLSD Docket 02/09/2020 Page 7 of 11
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`sustained substantial damages estimated at this time to be – at minimum - $75 million - $150
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`million, the full amount of which will be established at trial of this matter.
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`WHEREFORE, Plaintiff demands judgment against Defendant for compensatory
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`damages, an award of costs and reasonable attorneys’ fees where applicable, and such other
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`relief as the Court deems just and proper.
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`COUNT TWO: FRAUD IN THE INDUCEMENT
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`37.
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`38.
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`Plaintiff re-alleges and incorporates paragraphs 1 through 30 as set forth above.
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`On January 15, 2020, Defendant (through its representative Christian Ludtke)
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`made a materially false representation as to a presently-existing fact to Plaintiff. That
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`representation was that Defendant had at the time extended the deadline for migration of the
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`Software and Plaintiff’s associated data until the end of February 2020.
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`39.
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`At the time Defendant made this misrepresentation, Defendant knew the
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`misrepresentation to be untrue as Defendant had not, in fact, extended the deadline for migration
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`or otherwise updated its own system to note the extension.
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`40.
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`Defendant made
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`this misrepresentation
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`as
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`a
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`result
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`of multiple
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`communications/inquiries from Plaintiff about the January 31, 2020 deadline and whether the
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`Software would be migrated to the “IBM Cloud” service within such deadline.
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`41.
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`As Plaintiff was openly questioning the timeliness of Defendant’s compliance
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`with the deadline and seeking other hosting solutions at the time, Defendant made the
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`misrepresentation to induce Plaintiff to keep its hosting solutions with Defendant. Had Plaintiff
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`known the truth that Defendant had not put proper measures in place to avoid deletion of the
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`Software and its associated data, Plaintiff would have migrated the Software/data to another
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`hosting service prior to the January 31, 2020 deadline.
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`7
`DESOUZA LAW, P.A.
`3111 N. UNIVERSITY DRIVE, SUITE 301 • CORAL SPRINGS, FL 33065
`TELEPHONE (954) 603-1340
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`

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`Case 0:20-cv-60272-AHS Document 1 Entered on FLSD Docket 02/09/2020 Page 8 of 11
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`42.
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`As set forth herein, Plaintiff relied on Defendant’s misrepresentations in allowing
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`the January 31, 2020 deadline to pass (believing the deadline had been extended through end of
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`February 2020).
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`43.
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`As a direct and proximate result of Defendant’s conduct, Plaintiff suffered
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`substantial damages estimated at this time to be – at minimum - $75 million - $150 million, the
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`full amount of which will be established at trial of this matter.
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`WHEREFORE, Plaintiff demands judgment against Defendant for compensatory
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`damages, an award of costs and reasonable attorneys’ fees where applicable, and such other
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`relief as the Court deems just and proper.
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`COUNT THREE: GROSS NEGLIGENCE
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`44.
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`45.
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`Plaintiff re-alleges and incorporates paragraphs 1 through 30 as set forth above.
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`Defendant owed a duty of care to Plaintiff to perform the migration of the
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`Software and its associated data in a reasonable manner ensuring the integrity and security of the
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`data. Defendant knew and understood that it hosted the only version of the Software and that the
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`Software was implemented in several commercial environments such that it was relied upon by
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`tens of thousands of end-users.
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`46.
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`Defendant breached its duty to Plaintiff when Defendant allowed the Software
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`and its associated data to be deactivated on or about February 1, 2020 and when one of
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`Defendant’s representatives physically and intentionally entered a server command to
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`‘decommission’ (delete forever) Plaintiff’s data.
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`47.
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`In acting to deactivate and decommission Plaintiff’s data, Defendant acted with
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`reckless disregard for Plaintiff’s rights and essentially bordered on intentional wrongdoing. For
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`nearly two months, several members of Defendant’s sales and development team repeatedly
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`8
`DESOUZA LAW, P.A.
`3111 N. UNIVERSITY DRIVE, SUITE 301 • CORAL SPRINGS, FL 33065
`TELEPHONE (954) 603-1340
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`

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`Case 0:20-cv-60272-AHS Document 1 Entered on FLSD Docket 02/09/2020 Page 9 of 11
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`assured Plaintiff that its data was protected, that the migration period had been extended through
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`end of February 2020, and that Plaintiff’s data would not/could not be deleted due to Defendant’s
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`enhanced security features.
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`48.
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`As a direct and proximate result of Defendant’s gross negligence, Plaintiff
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`suffered substantial damages estimated at this time to be – at minimum - $75 million - $150
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`million, the full amount of which will be established at trial of this matter.
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`WHEREFORE, Plaintiff demands judgment against Defendant for compensatory
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`damages, an award of costs and reasonable attorneys’ fees where applicable, and such other
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`relief as the Court deems just and proper.
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`COUNT FOUR: CONVERSION
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`49.
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`50.
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`Plaintiff re-alleges and incorporates paragraphs 1 through 30 as set forth above.
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`Plaintiff owns and/or had the right to possess and control the Software at the time
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`that Defendant ‘decommissioned’/deleted the Software and its associated data.
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`51.
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`Defendant intentionally interfered with Plaintiff’s property (namely, the Software
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`and its associated data) by physically and intentionally entering a server command (which was
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`not automated) that resulted in the deletion of the Software and associated data.
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`52.
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`Defendant’s conducted has permanently deprived Plaintiff of the Software and its
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`associated data as the only copy of such existed on Defendant’s servers.
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`53.
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`As a direct and proximate result of Defendant’s conversion, Plaintiff suffered
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`substantial damages estimated at this time to be – at minimum - $75 million - $150 million, the
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`full amount of which will be established at trial of this matter.
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`9
`DESOUZA LAW, P.A.
`3111 N. UNIVERSITY DRIVE, SUITE 301 • CORAL SPRINGS, FL 33065
`TELEPHONE (954) 603-1340
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`

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`Case 0:20-cv-60272-AHS Document 1 Entered on FLSD Docket 02/09/2020 Page 10 of 11
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`WHEREFORE, Plaintiff demands judgment against Defendant for compensatory
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`damages, an award of costs and reasonable attorneys’ fees where applicable, and such other
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`relief as the Court deems just and proper.
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`COUNT FIVE: PRIMA FACIE TORT
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`54.
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`55.
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`Plaintiff re-alleges and incorporates paragraphs 1 through 30 as set forth above.
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`Defendant intentionally inflicted harm on Plaintiff when one of Defendant’s
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`representatives physically and intentionally entered a server command (which was not
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`automated) that resulted in the deletion of the Software and its associated data.
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`56.
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`Defendant’s conduct in deleting the Software and its associated data resulted in
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`special damages – Plaintiff lost the entirety of the Software (which itself was developed over 15+
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`years at a cost of more than $5 million), is unable to fulfill licensing obligations to tens of
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`thousands of end users, and has lost the entirety of its current and future income stream.
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`57.
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`There was no excuse or justification for Defendant’s conduct – Defendant
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`repeatedly assured Plaintiff over nearly two months that the Software and its associated data
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`would not be deleted and that the migration process had been extended through end of February
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`2020. The migration and hosting of data such as the Software is the precise business that
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`Defendant offers to its customers and purportedly specializes in – there is no excuse for one of
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`Defendant’s representatives deleting Plaintiff’s data given that it was Defendant’s task to protect
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`such data from deletion.
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`58.
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`As a direct and proximate result of Defendant’s conduct, Plaintiff suffered
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`substantial damages estimated at this time to be – at minimum - $75 million - $150 million, the
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`full amount of which will be established at trial of this matter.
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`10
`DESOUZA LAW, P.A.
`3111 N. UNIVERSITY DRIVE, SUITE 301 • CORAL SPRINGS, FL 33065
`TELEPHONE (954) 603-1340
`
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`

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`Case 0:20-cv-60272-AHS Document 1 Entered on FLSD Docket 02/09/2020 Page 11 of 11
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`WHEREFORE, Plaintiff demands judgment against Defendant for compensatory
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`damages, an award of costs and reasonable attorneys’ fees where applicable, and such other
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`relief as the Court deems just and proper.
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`Plaintiff demands a trial by jury on all issued so triable.
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`Demand For Jury Trial
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`Dated: February 9, 2020.
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`DESOUZA LAW, P.A.
`3111 N. University Drive
`Suite 301
`Coral Springs, FL 33065
`Telephone: (954) 603-1340
`DDesouza@desouzalaw.com
`
`By: /s/ Daniel DeSouza, Esq.______
`Daniel DeSouza, Esq.
`Florida Bar No.: 19291
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`11
`DESOUZA LAW, P.A.
`3111 N. UNIVERSITY DRIVE, SUITE 301 • CORAL SPRINGS, FL 33065
`TELEPHONE (954) 603-1340
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