Order Denying Motion to Dismiss False Advertising & Defamation Claims

1
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 1:19-cv-20247-UU
SHAWNA MATONIS,
Plaintiff,
v.
CARE HOLDINGS GROUP, L.L.C., et al.,
Defendants.
____________________________________/
ORDER ON MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendants’ Motion to Dismiss Plaintiff’s
Amended Complaint (the “Motion”). D.E. 19. The Court has reviewed the Motion, the pertinent
portions of the record and is otherwise fully advised in the premises.
I. Factual Background
A. Defendants
Unless otherwise indicated, the following facts are taken from the well-pleaded allegations
in Plaintiff’s Amended Complaint. D.E. 6. Defendant CareOptimize L.L.C. (“CareOptimize”) is a
Delaware corporation engaged in the business of healthcare management consulting, advising
healthcare providers on, inter alia, patient intake strategies and revenue management. Id. ¶¶ 3, 19.
Defendant Care Holdings Group L.L.C. (“Care Holdings”) is a Delaware corporation and the
parent company of CareOptimize (together the “Care Companies”), overseeing CareOptimize and
its other subsidiaries. Id.
Defendant Benjamin Quirk (“Quirk”) is a Florida citizen, an agent of Care Holdings, and
CareOptimize’s Chief Strategy Officer tasked with running its day-to-day operations. Id. ¶ 5.
Defendant Jonathan Shivers (“Shivers”) is a Georgia citizen, an agent of Care Holdings, and, at all
Case 1:19-cv-20247-UU Document 29 Entered on FLSD Docket 06/25/2019 Page 1 of 16

2
times relevant to this action, was CareOptimize’s Chief Business Development Officer responsible
for soliciting and locating new clients. Id. ¶ 6. Defendant Joseph N. De Vera (“De Vera”) is a
Florida citizen and, at all times relevant to this action, was CareOptimize’s in-house counsel, as
well as a member of and lawyer for Care Holdings. Id. De Vera also owns and operates a
professional association based in Florida, Joseph N. De Vera, P.A., (“De Vera P.A.”) . Id. ¶ 8.
B. Matonis’ Tenure at CareOptimize
Plaintiff Shawna Matonis (“Matonis”) is an Ohio citizen and healthcare management
consultant who provided consulting services to the Care Companies pursuant to a consulting
agreement (“Consulting Agreement”) entered into on or about January 8, 2016. D.E. 6 ¶¶ 2, 21.
The Consulting Agreement contains a confidentiality provision and a non-solicitation provision
with respect to the Care Companies’ employees, consultants, and agents. Id. While Matonis was
employed by the Care Companies she reported to Quirk and Shivers. Id. ¶ 22.
On September 9, 2016, while still employed with the Care Companies, Matonis founded
her own consulting company, Caliber RCM, LLC (“Caliber”), to help health care providers track
their revenue. Id. ¶ 23. After Matonis informed Defendants that she had created her company,
Defendants explicitly authorized her work with Caliber. Id. Approximately one year later, on
September 15, 2017, Quirk and Shivers informed Matonis that the Care Companies were in the
process of transitioning their independent contractors to W-2 employees and offered Matonis a W-
2 employment contract, which she declined. Id. ¶ 24. On September 26, 2017, Matonis met with
Quirk to explain that she had not accepted the offer to transition to a W-2 employee because the
proposal contained a two-year non-competition restriction and would have required Matonis to
shut down Caliber. Id. ¶ 25.

3
Over the next eight months, the Care Companies transitioned the clients Matonis had been
representing at CareOptimize to other CareOptimize employees. Id. ¶ 26. On June 4, 2018, Quirk
and Shivers advised Matonis that the Care Companies would be informing clients that she was no
longer affiliated with the Care Companies and that there was no need for her to communicate
further with those clients. Id. ¶ 27. On June 15, 2018, the Care Companies told Matonis that they
no longer needed her services and her relationship officially terminated no later than July 23, 2018.
Id. ¶ 28.
C. Post-Departure Developments
As Matonis’ involvement with the Care Companies was winding down and after she left,
Matonis expanded the healthcare consulting services provided by Caliber into patient intake and
revenue management, leading to direct competition with her former employer. Id. ¶ 29. During
this time, Defendants informed a number of clients, for whom Matonis had worked while at the
Care Companies, that Matonis was still affiliated with the Care Companies but was unable to work
because she was suffering from ongoing health issues and had requested time off. D.E. 6 ¶¶ 31,
35. Matonis discovered that Defendants had been making these types of statements after two
clients reached out to Matonis to check on her health. Id. Matonis informed the clients that she
was not suffering from any health issues and that she had been removed from the account because
she was no longer a Care Company independent contractor. Id.
On July 4, 2018, Matonis received another call from a client, Mike Clancey (“Clancey”),
regarding her health after Shivers told Clancey that his account had been transferred to a different
CareOptimize employee due to Matonis’ medical issues. Id. ¶ 36. After Matonis dispelled that
notion, Clancey emailed Quirk and Shivers on July 10, 2018, expressing his dissatisfaction with
their dishonesty about Matonis. Id. ¶ 37. Quirk emailed Clancey back on the same day to assure

4
him that Matonis would continue to work with the Care Companies indefinitely and was still
available to be Azura’s point person, despite the fact that Matonis had been terminated almost a
month prior. Id. ¶ 39.
D. De Vera’s Cease and Desist Letters
After numerous clients terminated their relationships with Defendants in June, 2018, in
July through September 2018, De Vera, on behalf of Defendants, sent cease and desist letters to
clients for whom Matonis had worked while at CareOptimize and to Matonis directly. Id. ¶¶ 41-
49. In these letters, De Vera asserted that Matonis was still subject to “broad confidentiality and
non-solicitation provisions” in her Consulting Agreement and threatened legal action if Matonis
continued to solicit CareOptimize’s clients and/or if those clients sought Matonis’ services. Id.
E. Defendants Continue to Misrepresent Matonis as a Care Company Agent
On December 1, 2018, Matonis discovered that Defendants had created an “out of office”
auto-response message on Mantonis’ former email account at Defendants, to which Matonis has
not had access since July, 2018. Id. ¶¶ 28, 49. Matonis contends that the auto-response message
created a false notion that she remained affiliated with the Care Companies, while at the same time
tainting her reputation as a professional who promptly returns her client’s messages. Id. ¶ 50.
F. General Misrepresentations on Care Companies’ Website
Lastly, Matonis alleges that CareOptimize’s website advertises that it serves over twenty
thousand healthcare providers nationwide, when allegedly, it serves closer to five thousand
healthcare providers at any given time. Id. ¶ 54. According to Matonis, the website misrepresents
CareOptimize’s client base, listing Azura and CEEC as clients even after both companies
terminated their relationship with CareOptimize. Id. ¶ 55.

5
II. Procedural Background
On February 8, 2019, Matonis re-filed a five-count Amended Complaint, alleging: (1) False
Advertising under 15 U.S.C. § 1125(a); (2) Unfair Competition under Florida law as to all
Defendants; (3) Defamation per se as to all Defendants; (4) Tortious Interference; and (5)
declaratory judgment that Matonis is not precluded from working with the Care Companies’
current, former, or prospective clients. D.E. 6. On March 8, 2019, defendants filed the instant
Motion to Dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6).
III. Legal Standard
In order to state a claim, Federal Rule of Civil Procedure 8(a)(2) requires only “a short and
plain statement of the claim showing that the pleader is entitled to relief.” While a court, at this
stage of the litigation, must consider the allegations contained in the plaintiff’s complaint as true,
this rule “is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In
addition, the complaint’s allegations must include “more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555).
In practice, to survive a motion to dismiss, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting
Twombly, 550 U.S. at 570). A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged. Id. The plausibility standard requires more than a sheer possibility that a defendant has
acted unlawfully. Id. Where a complaint pleads facts that are merely consistent with a defendant’s
liability, it stops short of the line between possibility and plausibility of entitlement to relief. Id.

6
Determining whether a complaint states a plausible claim for relief is a context-specific
undertaking that requires the court to draw on its judicial experience and common sense. Id. at
679.
IV. Analysis
A. Independent Tort Doctrine
Defendants first argue that Counts One through Four are barred under Florida’s
independent tort doctrine which “bars a contracting party from recovery in tort where the act
complained of relates to the performance of the contract.” De Sterling v. Bank of Am., N.A., No.
09-21490-CIV, 2009 WL 3756335, at *3 (S.D. Fla. Nov. 6, 2009). According to Defendants, their
relationship with Plaintiff arises solely from the Consulting Agreement and Matonis cannot point
to “any duty that exists independently of the duties arising under the [Consulting] Agreement” and
therefore the tort claims in Counts One through Four relate to the performance of the Consulting
Agreement and must be dismissed. D.E. 19 at 4-5.
However, the independent tort doctrine does not bar claims where the plaintiff has alleged
conduct that is independent from acts that breached the contract and does not itself constitute
breach of the contract at issue. XP Glob., Inc. v. AVM, L.P., No. 16-CV-80905, 2016 WL 4987618,
at *4 (S.D. Fla. Sept. 19, 2016); De Sterling, No. 09-21490-CIV, 2009 WL 3756335, at *3 (“The
[independent tort doctrine] does not bar a tort action . . . [based on] acts considered to be
independent from acts that breached the contract . . . tort claims such as fraud, conversion,
intentional interference and civil theft remain viable even if the parties are in privity of contract.”);
See HTP, Ltd. v. Lineas Aereas Costarricenses, 685 So. 2d 1238, 1239 (Fla. 1996). (“Where a
contract exists, a tort action will lie for either intentional or negligent acts considered to be
independent from acts that breached the contract.”).

7
Here, the tort claims in Counts One through Four are independent from any breach of the
Consulting Agreement. First, these claims all relate to conduct independent of the services Matonis
provided to Defendants under the Consulting Agreement, namely the post-termination
representations made by Defendants. See Azure, LLC v. Figueras Seating U.S.A., Inc., No. 12-CV-
23670-UU, 2013 WL 12093811, at *6 (S.D. Fla. July 18, 2013) (“Because the fraud and
misrepresentation claims are attended by some additional conduct that is not alleged with respect
to the breach of contract claim, the tort claims are not barred by [the independent tort doctrine].”).
Further, in order to state a claim for these torts, Plaintiff must allege facts that are separate
and distinct from a breach of contract claim, which requires (1) the existence of a contract, (2) a
breach thereof, and (3) damages flowing from the breach. See Wistar v. Raymond James Financial
Services, Inc., 365 F.Supp.3d 1266, 1269 (S.D. Fla. 2018); see also HTP, Ltd., 685 So. 2d at 1239
(explaining that fraud claim was not barred by independent tort doctrine because it required proof
of separate and distinct facts from breach of contract claim).
Defendants’ assertion that Matonis’ tort claims arise from violations of duties imposed by
her Consulting Agreement with CareOptimize is similarly meritless. None of her claims sound in
negligence or otherwise involve the breach of any contractual duty, let alone breaches of duties
created by the Consulting Agreement.1
For example, Count One alleges false advertising under the
Lanham Act (15 U.S.C. § 1125(a)), which provides a strict liability tort cause of action against a
party who uses a name in commerce that is likely to cause confusion; there is no breach of a duty
involved. Vector Products, Inc. v. Hartford Fire Ins. Co., 397 F.3d 1316 (11th Cir. 2005). Count
1
Moreover, Defendants fail to identify any duties in the Consulting Agreement regarding solicitation of past, present,
or future clients by the parties, and Defendants do not cite to a specific portion of the contract that imposes the duties
involved in the allegations relating to Matonis’ tort claims. The only potentially relevant clause is the solicitation
clause, which only bars solicitation of CareOptimize’s employees, consultants, or agents, none of which are at issue
here. D.E. 19-1.

8
Two alleges Unfair Competition under Florida law, which requires that a party plead “(1) deceptive
or fraudulent conduct of a competitor and (2) likelihood of consumer confusion.” Third Party
Verification, Inc. v. Signaturelink, Inc., 492 F. Supp. 2d 1314, 1324 (M.D. Fla. 2007) (citation
omitted). Lastly, neither of Matonis’ defamation per se claim nor her tortious interference claim
in Counts Three or Four require that she plead the breach of any contractual duty. See Thomas v.
Jacksonville Television, Inc., 699 So. 2d 800, 803–04 (Fla. Dist. Ct. App. 1997) (listing the
elements of defamation under Florida law); see also Int'l Sales & Serv., Inc. v. Austral Insulated
Prod., Inc., 262 F.3d 1152, 1154 (11th Cir. 2001) (listing elements of tortious interference under
Florida law). Accordingly, as Matonis’ tort claims do not depend upon the breach of any
contractual duty in the Consulting Agreement and are separate and independent from any potential
breach of contract claim, Florida’s independent tort doctrine does not bar her claims and the Court
DENIES Defendants’ Motion on this ground.
B. Improper Defendants
Defendants next argue, without any citation to any relevant caselaw or rules of civil
procedure, that Care Holdings, Quirk, Shivers, De Vera, and De Vera P.A. are improper defendants
because Matonis has failed to properly distinguish “what duty each owed to Matonis.” D.E. 19 at
5-6. As discussed supra, the existence of a legal duty is not relevant to Matonis’ tort claims. Had
Defendants researched the Federal Rules of Civil Procedure they would have come across Federal
Rule of Civil Procedure 20, which provides:
[P]ersons . . . may be joined in one action as defendants if:
(A)any right to relief is asserted against them jointly, severally, or in the alternative with
respect to or arising out of the same transaction, occurrence, or series of transactions or
occurrences; and
(B) any question of law or fact common to all defendants will arise in the action.

9
Fed. R. Civ. P. 20(a)(2)(A)-(B).
Matonis has unquestionably satisfied these requirements as she alleges that all Defendants
were involved in the operation of the Care Companies and the allegedly defamatory and
misleading statements. Further, Rule 21 unequivocally states “misjoinder of parties is not a ground
for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or
drop a party.” Fed. R. Civ. P. 21. Lastly, Defendants argue that Matonis has failed to allege any
claims against Defendants in their individual capacities. Not only is this irrelevant, but it is simply
untrue. See e.g., D.E. 6 ¶ 33 (“[I]n June 2018, Quirk informed Matonis’ former client Nova, that
Matonis could no longer work its account because she was suffering from an ongoing health
condition that compromised her ability to work.”); D.E. 6-6. Accordingly, the Court DENIES
Defendants’ Motion on this ground.
C. Count One as a Matter of Law
i. Parties’ Arguments
In Count One, Matonis brings a claim for false advertising under the Lanham Act, alleging
that Defendants made numerous false and misleading statements to clients, including: that Matonis
was too ill to adequately service clients necessitating their transfer to Care Optimize employees,
that Matonis was in violation of her Consulting Agreement, that she had been on vacation since
July 2018, and that the CareOptimize website falsely inflates the scope of its clientele and its
relationship with certain clients. D.E. 6 ¶¶ 61-71.
Defendants argue that Matonis’ claim in Count One must be dismissed because the cease
and desist letters do not constitute commercial speech or advertising for purposes of the Lanham
Act and the allegedly false statements on Defendants’ website do not directly disparage Plaintiff;

10
and otherwise fall short of the pleading standard under the Lanham Act.2
The Court will address
each contention in turn, although neither persuades the Court that this Count must be dismissed.
ii. Cease and Desist Letters as Commercial Speech
15 U.S.C. § 1125(a)(1)(B) prohibits false advertising in “commercial advertising and
promotion.” To succeed on a false advertising claim, a plaintiff must establish that: (1) the
advertisements of the opposing party were false or misleading; (2) the advertisements deceived, or
had the capacity to deceive, consumers; (3) the deception had a material effect on purchasing
decisions; (4) the misrepresented product or service affects interstate commerce; and (5) the
plaintiff has been or is likely to be injured as a result of the false advertising. Hickson Corp. v. N.
Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004).
With regard to whether a statement is “commercial advertising or promotion” under the
Lanham Act, courts in this circuit use the four-part test set forth in Gordon & Breach Sci.
Publishers v. Am. Inst. Of Physics, 859 F.Supp. 1521, 1535-36 (S.D. N.Y. 1994). See Futuristic
Fences, Inc. v. Illusion Fence Corp., 558 F.Supp.2d 1270, 1279 (S.D. Fla. 2008); AlphaMed
Pharms. Corp. v. Arriva Pharms., Inc., 391 F.Supp.2d 1148, 1164 (S.D. Fla. 2005). Under this
test, for statements to fall within the meaning of “advertising or promotion” they must be: (1)
commercial speech; (2) by a defendant who is in commercial competition with the plaintiff; (3)
for the purpose of influencing consumers to buy defendant’s goods or services; and (4) they must
be disseminated sufficiently to the relevant purchasing public to constitute “advertising” or
“promotion” within that industry. Taslidzic v. Luther, No. 9:18-CV-80038, 2018 WL 3134419, at
2
Defendants also contend that Counts Two and Four also fail as a matter of law. However, they raise these issues for
the first time in their reply brief, and they are therefore not properly before this Court and the Court does not consider
these arguments. See Herring v. Secretary, Dept. of Corrections, 397 F.3d 1338, 1342 (11th Cir. 2005) (“As we
repeatedly have admonished, ‘[a]rguments raised for the first time in a reply brief are not properly before a reviewing
court.’”) (quoting United States v. Coy, 19 F.3d 629, 632 n. 7 (11th Cir. 1994)).

11
*3 (S.D. Fla. May 21, 2018). “Commercial speech encompasses not merely direct invitations to
trade, but also communications designed to advance business interests . . . .” Id. (quoting VG
Innovations, Inc. v. Minsurg Corp., 2011 WL 1466181 at *5 (M.D. Fla. April 18, 2011) (citation
omitted)).
Defendants argue that the cease and desist letters do not constitute commercial speech or
advertising under the Lanham Act because they were merely sent to protect the legal rights of the
Care companies. D.E. 19 at 6-7. But, “[c]ommercial speech encompasses not merely direct
invitations to trade, but also communications designed to advance business interests.” VG
Innovations, Inc. v. Minsurg Corp., 2011 WL 1466181 at *5 (M.D. Fla. 2011) (quoting Kleiner v.
First National Bank of Atlanta, 751 F.2d 1193, 1204, n. 22 (11th Cir. 1985). Here, Matonis alleges
that Defendants utilized the cease and desist letters as a tool to disparage Plaintiff as someone who
ignores contractual obligations. D.E. 6 ¶ 41. Matonis alleges that by maligning her, Defendants
stood to profit because Matonis’ consulting company was now in direct competition with
Defendants and the clients to whom the letters were sent were former clients of Defendants who
were interested in Matonis’ services. See id.; Taslidzic v. Luther, No. 9:18-CV-80038, 2018 WL
3134419, at *4 (S.D. Fla. May 21, 2018) (“Courts have held that similar allegations of disparaging
statements made against competitors ‘[i]n an effort to gain more market share’ are sufficient to
satisfy the Lanham Act’s commercial speech requirements at the motion to dismiss stage.”)
(quoting Millenium Labs., Inc. v. Universal Oral Fluid Labs., LLC, No. 8:11-CV-1757-MSS-
TBM, 2012 WL 12906334, at *1 (M.D. Fla. Aug. 2, 2012)); Advisors Excel, L.L.C. v. Scranton,
No. 14-60558-CIV, 2014 WL 12543802, at *6 (S.D. Fla. Sept. 15, 2014) (holding that defendants’
disparaging statements were commercial speech because they were “designed to advance
Advisors' Academy’s business interests through influencing consumers to buy Advisors'

12
Academy’s services, rather than Plaintiff’s. Moreover, it is undisputed that Advisors' Academy
and Plaintiff are in commercial competition with one another.”); cf. Futuristic Fences, Inc., 558
F.Supp.2d at 1281 (holding that cease and desist letters were not “commercial speech” because
their purpose was not to influence the recipients into buying defendant’s products, but rather to
inform the recipients of allegations of infringement). Accordingly, the Court finds that Matonis
has adequately alleged that the cease and desist letters constitute commercial speech and DENIES
Defendants’ Motion on this ground.
iii. False Advertising on Defendants’ Website
As to the statements on Defendants’ website, Defendants contend that since Matonis did
not allege that any disparaging statements were made about her on the website, she has failed to
state a claim for false advertising. D.E. 19 at 6-7. This argument is unpersuasive. First, Defendants
do not explain why Matonis’ failure to allege that Defendants’ website contained disparaging
comments about her renders her claim defective. See Fed. Ins. Co. v. Cty. of Westchester, 921 F.
Supp. 1136, 1138 (S.D.N.Y. 1996) (“Under the adversary system, it is counsel's responsibility to
explain why these points have legal merit; the Court does not serve as counsel's law clerk.”).
Second, assuming that Defendants seek to argue that Matonis has failed to allege that she suffered
any injury as a result of any allegedly false statements on their website, their argument still fails.
This element of the Lanham Act only requires the Plaintiff to prove that she has been or is likely
to be injured as a result of the false advertising, not that the advertisement(s) are directed
specifically at her. Hickson Corp., 357 F.3d at 1260. By alleging that Plaintiff and Defendants are
competitors in the healthcare management consulting industry, and that Defendants falsely
represent the number of clients it represents and the scope of the representation, Plaintiff has
satisfied her burden at this stage of the litigation to show injury or the possibility of injury due to

13
Defendants’ false advertisements on their website. See Precision IBC, Inc. v. PCM Capital, LLC,
No. CIV.A. 10-00682-CG-B, 2011 WL 5444114, at *7 (S.D. Ala. Oct. 17, 2011), report and
recommendation adopted, No. CIV.A. 10-00682-CG-B, 2011 WL 5444111 (S.D. Ala. Nov. 10,
2011) (“[T]he undersigned finds that Plaintiff has alleged the type of injury that the Lanham Act
is designed to address. Because Plaintiff competes head-to-head with Defendants, Plaintiff is at a
competitive disadvantage if Defendants are able to advance their market position through false
advertisements.”). Accordingly, the Court DENIES Defendant’s Motion on this ground.
D. Count Three as a Matter of Law
Plaintiff brings a claim for defamation per se against Defendants on the grounds that they
published false statements, orally and in writing, to several of Plaintiff’s current and prospective
clients that: (1) she was suffering from an ongoing health problem that affected her ability to work
on their accounts; (2) she is in violation of a non-solicitation agreement by working with the Care
Companies’ former clients; and (3) continued work with her would expose them to legal liability.
D.E. 6 ¶ 79.
Under Florida law, to state a claim for defamation—libel or slander—the plaintiff must
allege that: “(1) the defendant published a false statement; (2) about the plaintiff; (3) to a third
party; and (4) that the falsity of the statement caused injury to the plaintiff.” Alan v. Wells Fargo
Bank, N.A., 604 Fed. App’x. 863, 865 (11th Cir. 2015). In a per se action, statements qualify as
defamation when, considered alone and without innuendo, they: (1) charge that a person has
committed an infamous crime; (2) tend to subject one to hatred, distrust, ridicule, contempt, or
disgrace; or (3) tend to injure one in his trade or profession. Id. “[T]he language used should be
interpreted as the ‘common mind’ would normally understand it.” Scobie v. Taylor, 2013 WL
3776270, at *2 (S.D. Fla. July 17, 2013). There are two iterations of actionable language tending

14
to injure one in his trade or profession: (1) language that “tend[s] to injure a person in [his] office,
occupation, business, or employment and which in natural and proximate consequence will
necessarily cause injury”; and (2) “language that imputes to another conduct, characteristics, or a
condition incompatible with the proper exercise of his lawful business, trade, profession or office.”
Id. (quoting Metropolis Co. v. Croasdell, 199 So. 568 (Fla. 1941); Fun Spot of Florida, Inc. v.
Magical Midway of Cent. Florida, Ltd., 242 F.Supp.2d 1183, 1197 (M.D. Fla. 2002)).
Plaintiff contends that the statements she attributes to Defendants qualify as defamation
per se because even when considered alone, they tend to subject her to distrust, ridicule, contempt,
and disgrace and are injurious to her trade and professional reputation. D.E. 6 ¶ 80. Defendants
argue in completely conclusory fashion that none of the allegedly defamatory statements constitute
defamation per se under Florida Law because they are not allegations that she committed an
“infamous crime” or that would subject her to distrust or ridicule. D.E. 19 at 7-8. But, Defendants
conveniently omit the third category of defamatory statements, those “that tend to injure one in his
trade or profession.” Alan, 604 Fed. App’x. 863, 865 (11th Cir. 2015).
Considering the defamatory statements alleged in the complaint alone and interpreting
them as a “common mind” would normally understand them, Matonis has adequately alleged that
the statements tend to injure her profession:
The false and misleading representations had a material effect on Matonis’ current and
prospective clients’ decisions to do business with her because no company would do
business with Matonis if it believed that (1) Matonis was in breach of her contractual
relationship with CareOptimize, (2) she was potentially too ill to provide services, or (3) a
relationship with Matonis could result in exposure to legal liability. . . .
Matonis has been harmed by the diminished economic value of the goodwill and reputation
that she built over her many years in the health care management consulting services
industry.

15
D.E. 6 ¶¶ 66, 82 (emphasis added). Accordingly, the Court DENIES Defendant’s Motion on this
ground.
E. Shotgun Pleading
Lastly, Defendants argue that although the Court sua sponte dismissed the initial complaint
for failure to comply with Rule 8, the amended complaint fails to adequately address the failings
the Court identified and is therefore still subject to dismissal as a shotgun pleading. “A shotgun-
style complaint is [sic] one that incorporates all of the general factual allegations by reference into
each subsequent claim for relief.” Great Fla. Bank v. Countrywide Home Loans, Inc., 2011 WL
382588, at *2 (S.D. Fla. Feb. 3, 2011) (quotations omitted); see also, e.g., Chudasama v. Mazda
Motor Corp., 123 F.3d 1353, 1359 n. 9 (11th Cir. 1997) (finding a shotgun pleading where “a
reader of the complaint must speculate as to which factual allegations pertain to which count.”);
Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty. Coll., 77 F.3d 364, 366 (11th Cir. 1996) (finding
complaint was “perfect example of ‘shotgun’ pleading in that it [was] virtually impossible to know
which allegations of fact [were] intended to support which claim(s) for relief.”) (citation omitted).
The Court disagrees with Defendants because Plaintiff has adequately amended her
complaint. She has removed the unnecessary paragraphs, bringing the total down from 165 to 106,
while incorporating only relevant facts in each count. Moreover, she has adequately explained how
each factual allegation supports each element of her claims. See e.g., D.E. 6 ¶ 66 (“The false and
misleading representations had a material effect on Matonis’ current and prospective clients’
decisions to do business with her because no company would do business with Matonis if it
believed that . . . she was potentially too ill to provide services, or [that] . . . a relationship with
Matonis could result in exposure to legal liability.”). Therefore, the Amended Complaint is not a
shotgun pleading. Broberg v. Carnival Corporation, 303 F.Supp.3d 1313, 1320 (S.D. Fla. 2017)

16
(“The Eleventh Circuit, while consistently condemning shotgun pleadings, has cautioned that
dismissal of a claim should be the last resort.”) (quotations omitted).
V. Conclusion
For the reasons discussed supra, it is
ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss, D.E. 19, is DENIED.
Defendants SHALL FILE an ANSWER to Plaintiff’s complaint by Friday, June 28, 2019.
FAILURE TO RESPOND BY THIS DATE MAY RESULT IN SANCTIONS, INCLUDING
DEFAULT.
DONE AND ORDERED in Chambers at Miami, Florida, this _25th__ day of June, 2019.
_______________________________
URSULA UNGARO
UNITED STATES DISTRICT JUDGE
cc: counsel of record via cm/ecf

Order Denying Motion to Dismiss False Advertising & Defamation Claims

Recommended

Recommended

More Related Content

Similar to Order Denying Motion to Dismiss False Advertising & Defamation Claims

Similar to Order Denying Motion to Dismiss False Advertising & Defamation Claims (20)

More from Pollard PLLC

More from Pollard PLLC (19)

Recently uploaded

Recently uploaded (20)

Order Denying Motion to Dismiss False Advertising & Defamation Claims