Case 1:22-cv-22482-XXXX Document 1 Entered on FLSD Docket 08/05/2022 Page 1 of 34
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`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF FLORIDA
`
`CASE NO.
`
`
`JURY TRIAL DEMANDED
`
`
`
`
`Plaintiffs,
`
`a Florida
`INC.,
`JAWS PODIATRY,
`corporation, ABRAHAM WAGNER, DPM an
`individual,
`
`
`
`vs.
`
`CESAR MANUEL GARCIA NAVAS a/k/a
`CESAR GARCIA, an individual, ABIEL
`CARTAYA DELGADO,
`an
`individual,
`ALAIN CARTAYA DELGADO,
`an
`individual, LETICIA DELGADO BATISTA,
`an
`individual,
`A&D
`CREATIVE
`MARKETING LLC, a Florida limited liability
`company, LUXE FOOT SURGERY CORP., a
`Florida corporation, DARYL RAMIREZ, an
`individual, DIONY RAMIREZ, an individual,
`and RAYMOND LOPEZ, DPM, an individual,
`RAYMOND LOPEZ, DPM, P.A., a Florida
`professional association,
`
`Defendants.
`
`____________________________________/
`
`COMPLAINT
`
`Plaintiffs, Jaws Podiatry, Inc. and Abraham Wagner, DPM sue Defendants, Cesar Manuel
`
`
`
`
`
`Garcia Navas a/k/a Cesar Garcia, Abiel Cartaya Delgado, Alain Cartaya Delgado, Leticia Delgado
`
`Batista, A&D Creative Marketing LLC, Luxe Foot Surgery Corp., Daryl Ramirez, Diony Ramirez,
`
`and Raymond Lopez, M.D. and Raymond Lopez, DPM, P.A., and aver:
`
`NATURE OF THE ACTION
`
`1.
`
`This is an action seeking injunctive relief and monetary relief for false designation
`
`of origin, and unfair competition arising under the Lanham Act, 15 U.S.C. § 1051 et seq., for direct
`
`and indirect copyright infringement under the Copyright Act, 17 U.S.C. § 501 et seq., for violation
`
`

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`Case 1:22-cv-22482-XXXX Document 1 Entered on FLSD Docket 08/05/2022 Page 2 of 34
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`of the Defend Trade Secrets Act, 18 U.S.C. § 1836 et seq., and the statutes and common law of
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`the State of Florida. As set forth below, Defendants have willfully infringed Plaintiff’s Copyrights,
`
`Trade Secrets1 and other valuable intellectual property (collectively Plaintiffs’ “Intellectual
`
`Property”), intentionally and maliciously misled the public as to the origin of their services,
`
`wrongfully engaged in deceptive and unfair business practices in order to compete with Plaintiffs,
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`and unlawfully accessed, harassed, and diverted patients and potential patients from Plaintiffs’
`
`medical practice. Defendants have intended to unlawfully profit from Plaintiff’s goodwill by
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`tortiously interfering with Plaintiff’s business and business relationships, by engaging in unfair
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`competition with Plaintiff, and by infringing Plaintiff’s intellectual property. These activities will
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`continue unless enjoined by this Court.
`
`PARTIES
`
`2.
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`Plaintiff, JAWS Podiatry, Inc. is a Florida corporation with its principal place of
`
`business located at 3700 Washington Street, Suite 403, Hollywood, Florida 33021.
`
`3.
`
`4.
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`Plaintiff Abraham Wagner, DPM is a physician and a resident of Florida.
`
`Defendant, Luxe Foot Surgery Corp. is a Florida corporation having its principal
`
`place of business located at 7975 NW 154th Street, Suite 244, Miami Lakes, Florida 33016.
`
`5.
`
`Defendant A&D Creative Marketing LLC is a Florida limited liability company
`
`having its principal place of business located at 18816 NW 80th Court, Hialeah, Florida 33015.
`
`6.
`
`Defendant Abiel Cartaya Delgado is an individual and Florida resident, residing on
`
`information and belief in Miami Dade County, Florida. Abiel is also a member of Defendant A&D.
`
`7.
`
`Defendant Alain Cartaya Delgado is an individual and Florida resident, residing on
`
`information and belief in Miami Dade County, Florida. Alain is also a member of Defendant A&D.
`
`
`1 As these terms are defined herein.
`
`2
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`

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`Case 1:22-cv-22482-XXXX Document 1 Entered on FLSD Docket 08/05/2022 Page 3 of 34
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`8.
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`Defendant Leticia Delgado Batista is an individual and Florida resident, residing
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`on information and belief in Miami Dade County, Florida. Leticia is also a member of Defendant
`
`A&D.
`
`9.
`
`Defendant, Cesar Garcia, is an individual and Florida resident, residing on
`
`information and belief in Miami Dade County, Florida. Garcia is also the Treasurer of Defendant
`
`Luxe Foot Surgery.
`
`10.
`
`Defendant, Daryl Ramirez is an individual and Florida resident, residing on
`
`information and belief in Miami Dade County, Florida. Daryl is also the president and an owner
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`of Defendant Luxe Foot Surgery. Daryl is also a member of Defendant A&D.
`
`11.
`
`Defendant, Diony Ramirez is an individual and Florida resident, residing on
`
`information and belief in Miami Dade County, Florida. Diony is also the vice president and an
`
`owner of Defendant Luxe Foot Surgery. Diony is also a member of Defendant A&D.
`
`12.
`
`Defendant Raymond Lopez, D.P.M. is an individual and Florida resident, residing
`
`on information and belief in Miami Dade County, Florida. Dr. Lopez is also a surgeon in the
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`employ of Defendant Luxe Foot Surgery.
`
`13.
`
`Defendant Raymond Lopez, DPM, P.A. is a Florida professional association wholly
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`owned by and the alter ego of Defendant Lopez.
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`JURISDICTION AND VENUE
`
`14.
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`This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and
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`1338(a) and 15 U.S.C. § 1121(a) because Plaintiffs’ claims arise under the Lanham Act.
`
`15.
`
`This Court has supplemental jurisdiction over JAWS PODIATRY’s Florida state
`
`law and common law claims pursuant to 28 U.S.C. §§ 1338(b) and 1367(a) because those claims
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`are joined with substantial and related claims under the Lanham Act, and are so related to the
`
`3
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`

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`Case 1:22-cv-22482-XXXX Document 1 Entered on FLSD Docket 08/05/2022 Page 4 of 34
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`claims under the Lanham Act that they form part of the same case or controversy under Article III
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`of the United States Constitution.
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`16.
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`This Court has personal jurisdiction over Defendants because Defendants reside,
`
`transact business, and because Defendants have committed acts of unfair competition, false
`
`designation of origin, passing off, and computer abuse within the State of Florida and within this
`
`District.
`
`17.
`
`Venue is proper in this District under 28 U.S.C. §§ 1391(b)(1) and 1391(c)(2)
`
`because Defendant is subject to personal jurisdiction in this District.
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`ALLEGATIONS RELEVANT TO ALL COUNTS
`
`A.
`
`18.
`
`Plaintiffs’ Background
`
`Dr. Abraham Wagner is a Diplomate certified by the American Board of Podiatric
`
`Medicine and is a nationally and internationally recognized physician in the field of podiatry and
`
`cosmetic foot surgery. Dr. Wagner is a leader and educator in the field of minimally invasive foot
`
`and ankle surgical techniques, and his reputation and results attract patients from across the globe.
`
`Dr. Wagner is a principal and owner of JAWS PODIATRY. Dr. Wagner has been a physician
`
`since 2004 and has established an extremely successful medical practice in South Florida with a
`
`loyal and consistently growing patient base.
`
`19.
`
`JAWS PODIATRY has expended great sums of money and substantial effort in
`
`establishing its business and its reputation since the business’s inception. Through continuous and
`
`extensive use and promotion of Dr. Wagner’s proprietary evaluation and surgical methodology,
`
`he and JAWS PODIATRY have amassed substantial and valuable goodwill and consumer
`
`recognition, as evidenced at least by JAWS PODIATRY’s YouTube channel amassing a
`
`4
`
`

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`Case 1:22-cv-22482-XXXX Document 1 Entered on FLSD Docket 08/05/2022 Page 5 of 34
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`subscription base of over 336,000 subscribers who view the over 1,145 videos posted.2 Dr. Wagner
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`also has received over 400 “5 star” reviews from patients which describe his excellent care in
`
`written testimonials. Consumers have come to closely associate the distinctive and valuable
`
`goodwill and Trade Secrets of Dr. Wagner and thus JAWS PODIATRY with their patient care and
`
`surgical and other medical services.
`
`20.
`
`JAWS PODIATRY owns and operates its website, www.jawspodiatry.com. JAWS
`
`PODIATRY also owns and operates several social media accounts, including a Facebook
`
`account3, a LinkedIn account4, a YouTube Channel, a Tik Tok account, and an Instagram account5,
`
`in connection with its practice, and has done so since at least as early as 2017.
`
`B.
`
`21.
`
`JAWS PODIATRY Intellectual Property
`
`Dr. Wagner has a unique method and technique for performing minimally invasive
`
`and aesthetic foot surgical procedures under local anesthesia. These proprietary methods and
`
`procedures are a less invasive alternative to traditional open surgery, resulting in patients having
`
`less pain and trauma and having faster recovery times than competitors in the podiatric medical
`
`industry. Dr. Wagner has maintained the secrecy and proprietary nature of the details of his
`
`surgical methodology in several ways, including restricting access to those who may observe his
`
`procedures, and ensuring that any video footage of his procedures only includes information
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`already in the public domain or commonly performed in his industry. JAWS PODIATRY
`
`maintains the confidentiality of Dr. Wagner’s procedures and methodologies as part of its business
`
`policy. JAWS PODIATRY further maintains the confidentiality and proprietary nature of its
`
`patient lists and contact information, business plans, marketing strategies, financial data, profits
`
`
`2 https://www.youtube.com/c/JAWShealthcare (July 27, 2022).
`3 https://www.facebook.com/jawspodiatry/ (July 27, 2022).
`4 https://www.linkedin.com/company/jaws-podiatry (July 27, 2022).
`5 https://www.instagram.com/jawspodiatry/?hl=en (July 27, 2022).
`
`5
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`

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`Case 1:22-cv-22482-XXXX Document 1 Entered on FLSD Docket 08/05/2022 Page 6 of 34
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`and profit margins, computer programs and software concerning their business operations,
`
`research and development and information related to its patients and surgery methods.6 This
`
`proprietary and confidential information shall be collectively referred to herein as the Plaintiffs’
`
`“Trade Secrets”.
`
`22.
`
`Plaintiffs have created unique photographs and videos depicting patient medical
`
`and cosmetic foot issues, evaluations, and the surgical and other medical treatments performed in
`
`its practice. JAWS PODIATRY owns the copyrights in each of these photographs and videos.
`
`JAWS PODIATRY has further created unique marketing materials and graphics for its website
`
`and social medial accounts and owns the copyrights in these marketing materials and graphics as
`
`well. These unique creations shall be collectively referred to herein as the Plaintiffs’ “Copyrights.”
`
`23.
`
`Plaintiffs’ Trade Secrets and Copyright shall be collectively referred to herein as
`
`Plaintiffs’ “Intellectual Property.”
`
`24.
`
`Consumers hold Dr. Wagner and JAWS PODIATRY in high regard and rely on
`
`his/their reputation when selecting a physician and making appointments for medical and surgical
`
`treatments offered in association with Plaintiffs’ Intellectual Property.
`
`25.
`
`Plaintiffs did not authorize and have not authorized any of the Defendants to use
`
`the Intellectual Property in any manner whatsoever outside the scope of promotion of Plaintiffs’
`
`medical practice.
`
`C.
`
`
`26.
`
`Relationship Among Defendants and Plaintiffs and Access to the Intellectual
`Property
`
`JAWS PODIATRY hired Garcia on or about March 30, 2020. Garcia’s role was as
`
`an in-house social media marketer. His primary tasks in this role were to help photograph and
`
`
`6 JAWS PODIATRY also obtains consents and releases to allow photos and videos depicting their procedures to be
`used for JAWS PODIATRY’S marketing purposes.
`
`6
`
`

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`Case 1:22-cv-22482-XXXX Document 1 Entered on FLSD Docket 08/05/2022 Page 7 of 34
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`video Dr. Wagner’s surgeries and edit these photos and videos for posting on Dr. Wagner’s and
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`JAWS PODIATRY’S social media accounts. Garcia would at times also respond to comments on
`
`these social media accounts. In addition to the aforementioned tasks, Garcia would also assist Dr.
`
`Wagner by bringing patients into their rooms and staying near Dr. Wagner during surgeries to give
`
`non-medical assistance when requested.
`
`27.
`
`As part of Garcia’s employment, Garcia was tasked with videotaping Dr. Wagner’s
`
`surgical procedures, and editing and posting non-proprietary footage of those procedures to JAWS
`
`PODIATRY’s YouTube Channel. As a result of these assignments, Garcia had the full footage of
`
`each surgical procedure, including the portions of video showing Plaintiffs’ Trade Secrets.
`
`28.
`
`Prior to engagement with A&D, JAWS PODIATRY had hired Accelerank to create
`
`the JAWS PODIATRY website7, perform website optimization tasks, performing marketing and
`
`advertising services, and create unique, tailored marketing campaigns for JAWS PODIATRY.
`
`Accelerank had performed such tasks for JAWS PODIATRY from February 2017 through
`
`November 2020.
`
`29.
`
`As is common when a client hires an advertising and marketing company such as
`
`Accelerank, the advertising and marketing company will create accounts for the customer on
`
`different platforms that run campaigns, track engagement, generate emails, and other similar tasks
`
`to promote and facilitate engagement with the client. These accounts are created for and are always
`
`the property of the client, and these accounts move with the client regardless of the advertising
`
`company that is hired.
`
`
`
`
`
`
`7 www.jawspodiatry.com
`
`7
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`

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`Case 1:22-cv-22482-XXXX Document 1 Entered on FLSD Docket 08/05/2022 Page 8 of 34
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`30.
`
`During the course of Accelerank’s work for JAWS PODIATRY, Accelerank
`
`created GoogleAd campaigns. Through participation in the GoogleAd program, Google generates
`
`an account for the user, in this case JAWS PODIATRY, and generates monthly reports showing
`
`what advertising revenue was spent towards any particular campaign, Google analytics reports
`
`(clicks, engagements, etc.), and other account information. JAWS PODIATRY’s corporate credit
`
`card was also on file to pay the GoogleAd advertising expenses directly to Google, as is common
`
`practice in the industry.
`
`31.
`
`In approximately November 2020, Garcia began persuading JAWS PODIATRY to
`
`terminate its relationship with Accelerank and hire Defendant A&D, a company belonging to his
`
`lifelong friend, Abiel, for their marketing, advertising, website and SEO services.
`
`32.
`
`During the end of November 2020 and beginning of December 2020, JAWS
`
`PODIATRY met with Abiel on many occasions to discuss the services that A&D was to provide
`
`for JAWS PODIATRY, including search engine optimization (“SEO”) services, website
`
`maintenance, and advertising and marketing services, including running GoogleAd campaigns (the
`
`“Ad Services”).
`
`33.
`
`On or about December 14, 2020, JAWS PODIATRY verbally hired A&D to
`
`perform all of the services previously handled by Accelerank, including the Ad Services.
`
`Accelerank accordingly transferred JAWS PODIATRY’s GoogleAd account information and
`
`access to A&D pursuant to the industry practice.
`
`34.
`
`In December 2020, JAWS PODIATRY submitted its first payment to A&D.
`
`
`
`
`
`8
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`

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`Case 1:22-cv-22482-XXXX Document 1 Entered on FLSD Docket 08/05/2022 Page 9 of 34
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`D.
`
`Defendants’ Wrongful Conduct
`
`1.
`
`Misuse and Misappropriation of Property and Funds by A&D and its
`Members
`
`
`35. Without JAWS PODIATRY’s prior knowledge or consent, A&D created a separate
`
`Google Ad account under A&D’s name and control instead of using the account provided to A&D
`
`by Accelerank. A&D then linked this account to A&D’s corporate card to pay Google and refused
`
`to use the JAWS PODIATRY corporate credit card. When confronted about this, Abiel stated that
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`A&D did not want any “interruptions” in JAWS PODIATRY’S campaigns if the JAWS
`
`PODIATRY credit card payments were declined. Abiel further stated that he wanted A&D to reap
`
`the benefits of the credit card points that would be awarded as a result of the consistent large
`
`purchases made thereon. Abiel transferred the advertising campaigns created by Accelerank for
`
`JAWS PODIATRY and paid for by JAWS PODIATRY to the new A&D Google Ad account. In
`
`the months following, A&D would demand between approximately $1,700 and $7,000 per month
`
`for the Ad Services, dependent on JAWS PODIATRY’s budget for GoogleAd campaigns.
`
`36.
`
`Almost immediately upon hiring A&D, Abiel requested that JAWS PODIATRY
`
`form a partnership with and open a joint bank account with A&D. JAWS PODIATRY repeatedly
`
`informed A&D and Abiel that it was not interested in this arrangement, and that JAWS
`
`PODIATRY had never heard of this type of relationship between a medical practice and their
`
`marketing company. Despite persistent irritating requests from Abiel to do this, JAWS
`
`PODIATRY consistently refused, stating that they were not comfortable with such an
`
`arrangement. Nonetheless, Abiel continued to pressure JAWS PODIATRY, stating that this was
`
`how A&D did all their business. JAWS PODIATRY continued to refuse, and Abiel persisted for
`
`over a year.
`
`9
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`

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`Case 1:22-cv-22482-XXXX Document 1 Entered on FLSD Docket 08/05/2022 Page 10 of 34
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`37.
`
`Despite repeated requests from JAWS PODIATRY, A&D refused to change the
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`payment credit card for the GoogleAd account to the JAWS PODIATRY corporate card and
`
`further refused to tender any of the GoogleAd generated reports to JAWS PODIATRY which
`
`would show how JAWS PODIATRY’s budget was being spent and how the advertising campaigns
`
`were performing. Instead, A&D sent one (1) spreadsheet created internally by A&D and despite
`
`insistence would refuse to furnish the Google reports.
`
`38.
`
`In January 2022, the pressure from Abiel and Garcia to form a joint business entity
`
`with joint bank accounts came to a head. JAWS PODIATRY again continued to refuse Abiel’s
`
`demands to form a business entity together and firmly stated that it only wished to pay A&D for
`
`the Ad Services as agreed.
`
`39.
`
`Abiel then changed the terms of the agreement and demanded that JAWS
`
`PODIATRY would now have to pay A&D more money. To ensure compliance with these
`
`demands, A&D immediately and without notice paused all JAWS PODIATRY’s GoogleAd
`
`campaigns. This caused immediate and irreparable harm to JAWS PODIATRY as it received less
`
`internet visibility to potential patients looking for JAWS PODIATRY’s medical services and less
`
`contact and interaction from this potential patient group, meaning less revenue for JAWS
`
`PODIATRY.
`
`40.
`
`Dr. Wagner called Abiel to request that he please resume running the advertising
`
`campaign as before, and asked Abiel what price he was demanding to resume running the
`
`advertising campaign. Abiel demanded $12,000.00 per month. JAWS PODIATRY requested that
`
`a written agreement finally be put in place and had their counsel draft one. Abiel refused to sign
`
`on behalf of A&D. JAWS PODIATRY reluctantly and under duress was coerced to pay A&D
`
`$24,000.00 for the months of March and April 2022 to keep the advertising campaigns active.
`
`10
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`

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`Case 1:22-cv-22482-XXXX Document 1 Entered on FLSD Docket 08/05/2022 Page 11 of 34
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`Abiel demanded that the $24,000.00 be paid up front and in full or A&D would stop all ad
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`campaigns once again.
`
`41.
`
`In early May 2022, JAWS PODIATRY noticed a significant decrease in patient
`
`leads generated from the GoogleAd campaign from the normal amount of approximately 230 leads
`
`per month. As a result of this decrease, JAWS PODIATRY again requested from Abiel that A&D
`
`turn over the GoogleAd generated reports to show how JAWS PODIATRY’s advertising budget
`
`was being spent. Abiel refused and instead demanded another $12,000.00, threatening to stop
`
`running the advertising campaigns again if this demand was not met.
`
`42.
`
`On or about May 2, 2022, JAWS PODIATRY demanded that A&D turn over access
`
`and control of all JAWS PODIATRY accounts on all platforms, including GoogleAds, Typeforms,
`
`Hubspot, Liquidweb, Wordpress, and MOZ, in addition to turning over all of the JAWS
`
`PODIATRY original ad campaigns created for JAWS PODIATRY by Accelerank and the one
`
`campaign that A&D had created for JAWS PODIATRY.8
`
`43.
`
`Abiel refused this request and incorrectly stated that these accounts and campaigns
`
`were the property of A&D. As of the date of this filing, A&D is still in possession of and has
`
`refused to return to JAWS PODIATRY the original ad campaigns created by Accelerank for JAWS
`
`PODIATRY.
`
`44.
`
`To add insult to injury, Luxe Foot Surgery, with the aid of the other defendants
`
`have converted the ad campaigns created by Accelerank for JAWS PODIATRY for Luxe Foot
`
`Surgery’s own use and benefit and is now using these ads verbatim without having paid any
`
`consideration therefor.
`
`
`8 A&D created one “Bunion” campaign for JAWS in the year and a half of its alleged Ad Services. The other three
`campaigns were created by Accelerank and reused by A&D.
`
`11
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`45.
`
`As a result, JAWS PODIATRY had to hire a new marketing company to handle all
`
`of its Ad Services and incurred additional expense to have these wrongfully withheld Ad Services
`
`recreated. When JAWS PODIATRY hired its new marketing company and tried to transfer its
`
`accounts from A&D, as it had previously transferred the accounts from Accelerank to A&D,
`
`JAWS PODIATRY discovered that A&D had either changed permissions on JAWS
`
`PODIATRY’S accounts so that A&D had administrative access/ownership or created new
`
`accounts over which A&D had administrative access/ownership.
`
`46.
`
`This prevented JAWS PODIATRY from being able to edit, transfer, or control
`
`these accounts in any way. This was done deliberately so that JAWS PODIATRY would need to
`
`seek permission from Abiel/A&D to access their own accounts.
`
`47.
`
`Prior to terminating A&D, Dr. Wagner had asked Abiel for the login credentials for
`
`the JAWS PODIATRY Google Ads account so that he could see and understand how the JAWS
`
`PODIATRY budget was being spent. Abiel refused Dr. Wagner access. Dr. Wagner then asked if
`
`Abiel would come to the JAWS PODIATRY office and login with Abiel’s own computer to show
`
`Dr. Wagner the Google Ads account. Abiel also refused this request.
`
`48.
`
`Upon information and belief, A&D misappropriated the funds paid by JAWS
`
`PODIATRY for the Ad Services and wrongfully converted the funds while not applying the full
`
`amount of the agreed upon marketing spend and instead retaining those allocated funds.
`
`49.
`
`Between December 14, 2020 and May 2, 2022, JAWS PODIATRY paid to A&D
`
`the sum of $94,672.00. As of the date of this filing, JAWS PODIATRY has still not been provided
`
`access to its Google advertising accounts or Google-generated reports showing how these funds
`
`were spent.
`
`12
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`Case 1:22-cv-22482-XXXX Document 1 Entered on FLSD Docket 08/05/2022 Page 13 of 34
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`50.
`
`On or about May 4, 2022, prior counsel for JAWS PODIATRY sent a letter to A&D
`
`and its members to cease and desist their unlawful conduct and a demand to return the unearned
`
`funds paid to it by JAWS PODIATRY. As of the date of this filing, no response has been received.
`
`2.
`
`Intellectual Property Theft and Infringement by Luxe Foot Surgery
`and its Owners
`
`
`During the course of JAWS PODIATRY’s ongoing issues with A&D, Garcia
`
`51.
`
`conspired with Abiel, Alain, Leticia, Daryl and Diony of A&D to misappropriate JAWS
`
`PODIATRY’s Intellectual Property and used it to form a new business entity that would directly
`
`compete with JAWS PODIATRY.
`
`52.
`
`Since the inception of Luxe Foot Surgery and at all times relevant hereto, Plaintiffs
`
`and Luxe Foot Surgery have been direct competitors in the same geographic vicinity.
`
`53.
`
`Defendant Luxe Foot Surgery, in conjunction with Defendants Daryl, Diony, and
`
`Garcia, filed for registration of its business with the State of Florida on May 4, 2022. See Exhibit
`
`A, “Florida Luxe Business Registration.” This was merely two days after JAWS PODIATRY
`
`terminated its business relationship with A&D, of which A&D members Daryl and Diony were
`
`aware.
`
`54.
`
`Despite still being employed by JAWS PODIATRY, Garcia failed to inform JAWS
`
`PODIATRY of his involvement in the creation of a competing business entity.
`
`55.
`
`Due to Garcia’s employment by JAWS PODIATRY, Garcia had used JAWS
`
`PODIATRY’s copyrighted photographs and videos of medical procedures and cosmetic surgical
`
`procedures to upload to multiple Instagram accounts that Garcia created outside of the official
`
`JAWS PODIATRY account “JAWSPodiatry.” Garcia did this without the knowledge or
`
`authorization of Dr. Wagner or JAWS PODIATRY.
`
`13
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`Case 1:22-cv-22482-XXXX Document 1 Entered on FLSD Docket 08/05/2022 Page 14 of 34
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`56.
`
`Garcia’s last day of employment with JAWS PODIATRY was on or about May 5,
`
`2022. On or about May 6, 2022, the website www.luxefootsurgery.com is registered with the
`
`registering individual or entity hidden from disclosure.
`
`57.
`
`On or about May 8, 2022, Garcia submitted a letter of resignation to JAWS
`
`PODIATRY.
`
`58.
`
`During the course of his employment with JAWS PODIATRY, Garcia had at least
`
`three (3) mobile phones. On or about May 11, 2022, JAWS PODIATRY discovered not only
`
`Garcia’s infringing Instagram accounts, but also that Garcia had used his multiple mobile phones
`
`to store intellectual property belonging to JAWS PODIATRY including, but not limited to, photos,
`
`videos, x-rays, patient contact information, emails, usernames, passwords, and text messages with
`
`patients.
`
`59.
`
`Garcia posted photographs and videos belonging to JAWS PODIATRY to these
`
`infringing Instagram accounts without JAWS PODIATRY’s or the patients’ permissions.
`
`60.
`
`Since 2019, Dr. Wagner has had a close professional relationship with Orlando
`
`Nunez, M.D., DPM who has a podiatric practice in Coeur d’Alene, Idaho. Dr. Nunez is a mentor
`
`to Dr. Wagner, and Dr. Nunez travels to South Florida multiple times a year to perform minimally
`
`invasive surgical foot and ankle procedures with and further instruct and mentor Dr. Wagner.
`
`Garcia was aware of this professional relationship due to his employment at JAWS PODIATRY.
`
`61.
`
`On or about May 11, 2022, Abiel sent a text message to a Dr. Nunez that read “I
`
`am no longer working with Dr. Wagner. I have a new medical office for cosmetic foot surgery,
`
`and I would like for you to be the principal foot surgeon.” (translated from Spanish). Dr. Nunez
`
`was a long time friend and mentor to Dr. Wagner, and despite multiple contacts and pressure from
`
`Abiel, Dr. Nunez refused Abiel’s attempt to poach him to work at competing Luxe Foot Surgery.
`
`14
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`Case 1:22-cv-22482-XXXX Document 1 Entered on FLSD Docket 08/05/2022 Page 15 of 34
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`62.
`
`On May 12, 2022, JAWS PODIATRY had prior counsel prepare and send a demand
`
`letter to Garcia to, among other things, immediately cease and desist the unauthorized use of JAWS
`
`PODIATRY’s Intellectual Property. As of the date of this filing, no response has been received.
`
`63.
`
`On or about June 28, 2022, Garcia again reaches out to Dr. Nunez who does not
`
`engage.
`
`64.
`
`Dr. Keith Sklar is a renowned cosmetic podiatric surgeon who maintains a practice
`
`in Chicago, Illinois. Dr. Sklar is a colleague of Dr. Wagner and also follows Dr. Wagner’s and
`
`JAWS PODIATRY’S social media accounts, including YouTube and Instagram.
`
`65.
`
`On or about June 28, 2022, Dr. Sklar contacted Dr. Wagner to tell Dr. Wagner that
`
`a company called Luxe Foot Surgery was using photographs belonging to Dr. Wagner and/or
`
`JAWS PODIATRY. Dr. Sklar knew that these photographs belonged to Plaintiffs because he
`
`recognized them from Plaintiffs’ prior social media posts.
`
`66.
`
`Dr. Wagner investigated Dr. Sklar’s comments and observed that Luxe Foot
`
`Surgery had not only misappropriated his photographs, but had also plagiarized the content from
`
`Dr. Nunez’s website, including “before and after” photos of patients belonging to Dr. Nunez’s
`
`practice. Dr. Wagner communicated this to Dr. Nunez, and Dr. Nunez hired counsel to send a
`
`cease-and-desist letter to Luxe Foot Surgery.
`
`3.
`
`Computer Fraud, Unfair Competition, Consumer Fraud and
`Deception
`
`At the time of A&D’s unlawful control and dominion over JAWS PODIATRY’s
`
`67.
`
`advertising and marketing accounts, A&D set up a “Hubspot” account that was supposed to be
`
`owned by JAWS PODIATRY. Hubspot is the virtual digital “hub” that stores all contact and other
`
`information from all of the leads - patients seeking medical treatment from or more information
`
`about JAWS PODIATRY - regardless of the origin of such leads.
`
`15
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`

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`Case 1:22-cv-22482-XXXX Document 1 Entered on FLSD Docket 08/05/2022 Page 16 of 34
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`68.
`
`A&D created the JAWS PODIATRY Hubspot account so that Abiel had sole
`
`administrative control over it, and JAWS PODIATRY was given a lesser access role.
`
`69.
`
`JAWS PODIATRY’s Hubspot account contained nearly 4,000 contacts, all of
`
`which belonged to JAWS PODIATRY and constituted part of JAWS PODIATRY’s Trade Secrets.
`
`70.
`
`Upon termination of JAWS PODIATRY’s relationship with A&D, Abiel refused
`
`to turn over administrative access to the Hubspot account or to export the information contained
`
`therein to JAWS PODIATRY.
`
`71.
`
`JAWS PODIATRY contacted Hubspot to explain the situation and A&D’s
`
`wrongful withholding of administrative access to the JAWS PODIATRY account, but because
`
`Abiel was listed as the “owner/administrator” of JAWS PODIATRY’s Hubspot account, nothing
`
`could be done to remove him and turn over access to JAWS PODIATRY.
`
`72.
`
`JAWS PODIATRY copied all of the nearly 4,000 leads and information from the
`
`JAWS PODIATRY Hubspot account and used it to create a new “second” JAWS PODIATRY
`
`Hubspot account for which JAWS PODIATRY had administrative access. This “second” account
`
`is currently used by JAWS PODIATRY.
`
`73.
`
`A&D still have access to and control over JAWS PODIATRY’s original Hubspot
`
`account, and upon information and belief are using the leads, contact information, and personal
`
`information therein belonging JAWS PODIATRY to unfairly compete with JAWS PODIATRY
`
`and misrepresent to patients that they are JAWS PODIATRY in order to circumvent JAWS
`
`PODIATRY and steal its potential patients.
`
`74.
`
`JAWS PODIATRY had discovered that A&D had intercepted and diverted patient
`
`contacts from the JAWS PODIATRY website and ad campaigns. On information and belief, A&D
`
`capitalized on its position of control over the JAWS PODIATRY website to recode the contact
`
`16
`
`

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`Case 1:22-cv-22482-XXXX Document 1 Entered on FLSD Docket 08/05/2022 Page 17 of 34
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`form so that it would re-direct patient contact information and consultation requests from the
`
`JAWS PODIATRY website to Luxe Foot Surgery.
`
`75.
`
`In fact, JAWS PODIATRY has been contacted by many of its patients and potential
`
`patients and has been informed that Luxe Foot Surgery has:
`
`• Harassed JAWS PODIATRY patients and potential patients by calling multiple
`times a day, sometimes upwards of five calls per day as well as multiple text
`messages and emails;
`• Requested JAWS PODIATRY patients and potential patients to send pictures
`of their feet for a doctor to review and provide a price quote for their surgery;
`• Requested JAWS PODIATRY patients and potential patients to send initial
`payment deposits;
`• Quoted JAWS PODIATRY patients and potential patients exorbitant prices for
`cosmetic foot surgery and related aesthetic procedures;
`• Requested potential patients to make appointments to meet with Dr. Raymond
`Lopez and visit his Instagram page at “dr.raymiami”.
`
`On or about July 20, 2022, JAWS PODIATRY sent out a “blast” email to the
`
`76.
`
`approximately 18,000 people who have filled out contact forms with JAWS PODIATRY at one
`
`time or another, informing them that a third party may have contacted them, unsolicited, regarding
`
`their surgical concerns, and to inform JAWS PODIATRY of any such contact.
`
`77.
`
`After investigation, JAWS PODIATRY discovered that of the 18,000 “leads”
`
`described above, approximately 6,000 were legitimate potential patient leads. The remaining
`
`approximately 12,000 were sent from internet “bots” and not true leads. On information and belief,
`
`some of these fake leads were also orchestrated by A&D.
`
`78.
`
`On or about July 27, 2022, JAWS PODIATRY sent out a second “blast” email
`
`asking recipients to alert JAWS PODIATRY of the unsolicited contacts and provide as much
`
`information as possible.
`
`
`
`