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Case 0:14-cv-60413-DTKH Document 1-1 Entered on FLSD Docket 02/19/2014 Page 1 of 2
JS 44 (Rev. 12/12)
CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS
DEFENDANTS
COPANS MOTORS, INC., et al.
PORSCHE CARS NORTH AMERICA, INC.
(b) County of Residence of First Listed Plaintiff
County of Residence of First Listed Defendant
Broward
(EXCEPT IN U.S. PLAINTIFF CASES)
NOTE:
Fulton County, Georgia
(IN U.S. PLAINTIFF CASES ONLY)
IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.
Attorneys (If Known)
(c) Attorneys (Firm Name, Address, and Telephone Number)
Quinton & Paretti, P.A.
80 S.W. 8th St., Suite 2150
Miami, FL 33130; Phone: 305-358-2727
Berger Singerman LLP
350 E. Las Olas Boulevard, Suite 1000
Fort Lauderdale, FL 33301, Phone: 954-525-9900
II. BASIS OF JURISDICTION (Place an “X” in One Box Only)
’ 1
U.S. Government
Plaintiff
’ 3
Federal Question
(U.S. Government Not a Party)
’ 2
U.S. Government
Defendant
’ 4
Diversity
(Indicate Citizenship of Parties in Item III)
III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only)
PTF
Citizen of This State
’ 1
DEF
’ 1
and One Box for Defendant)
PTF
DEF
Incorporated or Principal Place
’ 4
’ 4
of Business In This State
Citizen of Another State
’ 2
’
2
Incorporated and Principal Place
of Business In Another State
’ 5
’ 5
Citizen or Subject of a
Foreign Country
’ 3
’
3
Foreign Nation
’ 6
’ 6
IV. NATURE OF SUIT (Place an “X” in One Box Only)
CONTRACT
’
’
’
’
’
’
’
’
’
’
’
’
TORTS
110 Insurance
120 Marine
130 Miller Act
140 Negotiable Instrument
150 Recovery of Overpayment
& Enforcement of Judgment
151 Medicare Act
152 Recovery of Defaulted
Student Loans
(Excludes Veterans)
153 Recovery of Overpayment
of Veteran’s Benefits
160 Stockholders’ Suits
190 Other Contract
195 Contract Product Liability
196 Franchise
’
’
’
’
’
’
’
’
’
’
’
’
’
’
’
’
REAL PROPERTY
210 Land Condemnation
220 Foreclosure
230 Rent Lease & Ejectment
240 Torts to Land
245 Tort Product Liability
290 All Other Real Property
’
’
’
’
’
’
’
PERSONAL INJURY
310 Airplane
315 Airplane Product
Liability
320 Assault, Libel &
Slander
330 Federal Employers’
Liability
340 Marine
345 Marine Product
Liability
350 Motor Vehicle
355 Motor Vehicle
Product Liability
360 Other Personal
Injury
362 Personal Injury Medical Malpractice
CIVIL RIGHTS
440 Other Civil Rights
441 Voting
442 Employment
443 Housing/
Accommodations
445 Amer. w/Disabilities Employment
446 Amer. w/Disabilities Other
448 Education
FORFEITURE/PENALTY
PERSONAL INJURY
’ 365 Personal Injury Product Liability
’ 367 Health Care/
Pharmaceutical
Personal Injury
Product Liability
’ 368 Asbestos Personal
Injury Product
Liability
PERSONAL PROPERTY
’ 370 Other Fraud
’ 371 Truth in Lending
’ 380 Other Personal
Property Damage
’ 385 Property Damage
Product Liability
PRISONER PETITIONS
Habeas Corpus:
’ 463 Alien Detainee
’ 510 Motions to Vacate
Sentence
’ 530 General
’ 535 Death Penalty
Other:
’ 540 Mandamus & Other
’ 550 Civil Rights
’ 555 Prison Condition
’ 560 Civil Detainee Conditions of
Confinement
’ 625 Drug Related Seizure
of Property 21 USC 881
’ 690 Other
BANKRUPTCY
’ 422 Appeal 28 USC 158
’ 423 Withdrawal
28 USC 157
PROPERTY RIGHTS
’ 820 Copyrights
’ 830 Patent
’ 840 Trademark
’
’
’
’
’
’
LABOR
710 Fair Labor Standards
Act
720 Labor/Management
Relations
740 Railway Labor Act
751 Family and Medical
Leave Act
790 Other Labor Litigation
791 Employee Retirement
Income Security Act
’
’
’
’
’
SOCIAL SECURITY
861 HIA (1395ff)
862 Black Lung (923)
863 DIWC/DIWW (405(g))
864 SSID Title XVI
865 RSI (405(g))
FEDERAL TAX SUITS
’ 870 Taxes (U.S. Plaintiff
or Defendant)
’ 871 IRS—Third Party
26 USC 7609
OTHER STATUTES
’
’
’
’
’
’
’
’
’
’
’
’
’
’
’
’
’
375 False Claims Act
400 State Reapportionment
410 Antitrust
430 Banks and Banking
450 Commerce
460 Deportation
470 Racketeer Influenced and
Corrupt Organizations
480 Consumer Credit
490 Cable/Sat TV
850 Securities/Commodities/
Exchange
890 Other Statutory Actions
891 Agricultural Acts
893 Environmental Matters
895 Freedom of Information
Act
896 Arbitration
899 Administrative Procedure
Act/Review or Appeal of
Agency Decision
950 Constitutionality of
State Statutes
IMMIGRATION
’ 462 Naturalization Application
’ 465 Other Immigration
Actions
V. ORIGIN (Place an “X” in One Box Only)
’ 1 Original
Proceeding
’ 2 Removed from
State Court
’ 3
Remanded from
Appellate Court
’ 4 Reinstated or
Reopened
’ 5 Transferred from
Another District
(specify)
’ 6 Multidistrict
Litigation
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
28 U.S.C. § 1332(a)
VI. CAUSE OF ACTION Brief description of cause:
Diversity of Citizenship and amount in controversy exceeds $75,000
’ CHECK IF THIS IS A CLASS ACTION
VII. REQUESTED IN
UNDER RULE 23, F.R.Cv.P.
COMPLAINT:
VIII. RELATED CASE(S)
(See instructions):
IF ANY
JUDGE
DATE
CHECK YES only if demanded in complaint:
’ Yes
’ No
JURY DEMAND:
DEMAND $
DOCKET NUMBER
SIGNATURE OF ATTORNEY OF RECORD
s/Gavin C. Gaukroger
02/19/2014
FOR OFFICE USE ONLY
RECEIPT #
AMOUNT
Print
APPLYING IFP
Save As...
JUDGE
MAG. JUDGE
Reset
Case 0:14-cv-60413-DTKH Document 1-1 Entered on FLSD Docket 02/19/2014 Page 2 of 2
JS 44 Reverse (Rev. 12/12)
INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:
I.(a)
(b)
(c)
Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the
time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.)
Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
in this section "(see attachment)".
II.
Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here.
United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box.
Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment
to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes
precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity
cases.)
III.
Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
section for each principal party.
IV.
Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is
sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than
one nature of suit, select the most definitive.
V.
Origin. Place an "X" in one of the six boxes.
Original Proceedings. (1) Cases which originate in the United States district courts.
Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441.
When the petition for removal is granted, check this box.
Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing
date.
Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.
Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or
multidistrict litigation transfers.
Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407.
When this box is checked, do not check (5) above.
VI.
Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional
statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service
VII.
Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P.
Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction.
Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.
VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.
Date and Attorney Signature. Date and sign the civil cover sheet.
Case 0:14-cv-60413-DTKH Document 1 Entered on FLSD Docket 02/19/2014 Page 1 of 7
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
COPANS MOTORS, INC. d/b/a
CHAMPION PORSCHE; and COPANS
MOTORS, INC., in the name of the
FLORIDA DEP'T OF HIGHWAY SAFETY
AND MOTOR VEHCILES AND STATE
OF FLORIDA for the use and benefit of
COPANS MOTORS, INC.,
Plaintiffs,
vs.
PORSCHE CARS NORTH AMERICA,
INC.,
)
)
)
)
)
)
)
)
)
)
)
)
)
)
No.
Defendant.
NOTICE OF REMOVAL
PLEASE TAKE NOTICE that Defendant Porsche Cars North America, Inc. (“PCNA”),
by and through its undersigned counsel, hereby removes the above-captioned civil action, and all
claims and causes of action therein, from the Circuit Court of the 17th Judicial Circuit in and for
Broward County, Florida, to the United States District Court for the Southern District of Florida,
pursuant to 28 U.S.C. §§ 1441(b) and 1446. This action is a civil action in which this Court has
jurisdiction under 28 U.S.C. § 1332(a). In further support of removal, PCNA states as follows:
1.
On or about January 29, 2014, plaintiff Copans Motors, Inc. d/b/a Champion
Porsche and Copans Motors, Inc., in the name of the Florida Department of Highway Safety and
Motor Vehicles (the “Department”) and State of Florida for the use and benefit of Copans
Motors, Inc. (collectively, “Champion”), filed a summons and complaint in the above-captioned
action in the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, Case
No. CACE 14001928 (the “State Court Action”).
Case 0:14-cv-60413-DTKH Document 1 Entered on FLSD Docket 02/19/2014 Page 2 of 7
2.
The Summons and Complaint in the State Court Action were served on PCNA on
January 31, 2014. True and correct copies of the Summons and Complaint are attached hereto as
Exhibit A.
BASIS OF REMOVAL
3.
This Court has original jurisdiction over this action, pursuant to 28 U.S.C. §
1332(a), because the amount in controversy exceeds $75,000, exclusive of interest and costs, and
the action, as explained below, is between citizens of different states.
CITIZENSHIP OF PARTIES
4.
Plaintiff Champion is now, and at the time the State Court Action was
commenced was, a citizen of Florida, as it is a corporation organized under the laws of the State
of Florida and has its principal place of business in Pompano Beach, Florida.
5.
Defendant PCNA is now, and at the time the State Court Action was commenced
was, a citizen of Delaware and Georgia, as it is a corporation organized under the laws of the
State of Delaware and has its principal place of business in Atlanta, Georgia.
6.
Thus, as between the parties, there exists complete diversity of citizenship under
28 U.S.C. § 1332(a)(1).
PLAINTIFF’S ATTEMPT TO BRING CLAIMS PURSUANT TO
SECTION 320.695, FLORIDA STATUTES, DOES NOT DESTROY DIVERSITY JURISDICTION
7.
Champion purports to bring Counts I and III of the Complaint pursuant to Section
320.695, Florida Statutes, “in the name of the department and state and for the use and benefit of
the motor vehicle dealer.”
8.
Section 320.695, Florida Statutes, states that “any motor vehicle dealer in the
name of the department and state and for the use and benefit of the motor vehicle dealer, is
authorized to make application to any circuit court of the state for the grant, upon a hearing and
2
Case 0:14-cv-60413-DTKH Document 1 Entered on FLSD Docket 02/19/2014 Page 3 of 7
for cause shown, of a temporary or permanent injunction, or both . . . from violating or
continuing to violate any of the provisions of ss. 320.60-320.70.” § 320.695, Fla. Stat.
9.
Champion’s claims “in the name of the department and state” do not destroy
federal diversity jurisdiction because, among other things, neither the Department nor the State
of Florida is a party to this action. (See Compl. at ¶¶ 6-12.)
10.
Moreover, even if the Department and the State of Florida are formal parties,
federal diversity jurisdiction exists because they are not real parties in interest. See, e.g.,
Ramada Inns, Inc. v. Rosemount Memorial Park Assoc., 598 F.2d 1303, 1306 (3d Cir. 1979).
“[A] federal court must disregard nominal or formal parties and rest jurisdiction only upon the
citizenship of real parties to the controversy.” Wheeler’s Moving & Storage, Inc. v. Markel Ins.
Co., No. 11-CV-80272, 2011 U.S. Dist. LEXIS 85851, at *3 (S.D. Fla. Aug. 4, 2011) (quoting
Navarro Savings Assoc. v. Lee, 446 U.S. 458, 460 (1980)).
11.
Here, the Department and the State of Florida are merely nominal parties (if
parties at all) because, among other things, they have no stake in the outcome of the litigation
apart from a general desire that state laws are enforced. See Ramada Inns, 598 F.2d at 1306-07
(“If a federal judgment will have no effect [on the state] other than to implicate the state’s
general governmental interest in the welfare of all its citizens . . . and in securing compliance
with all its laws, then the state is not the real party in interest.”). Indeed, the equitable relief that
Champion is seeking in Counts I and III of the Complaint, even if granted, would not require any
affirmative action by the Department or the State of Florida. See Ramada Inns, 598 F.2d at
1306. And, the plain language of Section 320.695,(Fla. Stat.), makes clear that any claim for
injunctive relief in the name of the Department and State of Florida is “for the use and benefit of
3
Case 0:14-cv-60413-DTKH Document 1 Entered on FLSD Docket 02/19/2014 Page 4 of 7
the motor vehicle dealer.” § 320.695, Fla. Stat. (emphasis added). (See also Compl. at ¶ 81, 116
(requesting injunctive relief “for the use and benefit of Champion”).)
12.
For these reasons, among others, Champion’s attempt to assert claims pursuant to
Section 320.695, (Fla. Stat.), does not destroy federal diversity jurisdiction.
AMOUNT IN CONTROVERSY
13.
The amount in controversy in this action exceeds $75,000, exclusive of interest
and costs.
14.
Among other claims, Champion seeks an injunction and declaration preventing
termination of its PCNA dealership, as well as damages relating to termination.
15.
In a related action pending in the Superior Court of Fulton County, State of
Georgia as Porsche Cars North America, Inc. v. Copans Motors, Inc., et al., Case No. 2013 CV
238772, Champion has alleged that its “dealership is worth at least ONE HUNDRED
MILLION DOLLARS ($100,000,0000).” (See Ex. A (Complaint) at Ex. 5 (Counterclaim ¶ 26)
(emphasis in original).)
16.
Accordingly, the amount in controversy exceeds $75,000, exclusive of interest
and costs.
See Leonard v. Enterprise Rent A Car, 279 F.3d 967, 973 (11th Cir. 2002)
(“The value of injunctive or declaratory relief for amount in controversy purposes is the
monetary value of the object of the litigation that would flow to the plaintiffs if the injunction
were granted.”).
PROPRIETY OF REMOVAL
17.
Pursuant to 28 U.S.C. § 1446(b), this notice has been timely filed within 30 days
of receipt by PCNA of the Summons and Complaint. See Murphy Brothers, Inc. v. Michetti Pipe
Stringing, 526 U.S. 344, 347 (1999).
4
Case 0:14-cv-60413-DTKH Document 1 Entered on FLSD Docket 02/19/2014 Page 5 of 7
18.
Apart from the Summons and Complaint, which are attached hereto as Exhibit A,
Champion filed in the State Court Action a Request for Production of Documents and
Interrogatories, which are attached hereto as Group Exhibit B. PCNA has received no other
process, pleadings, motions or orders. See 28 U.S.C. § 1446(a).
19.
Written notice of the filing of this Notice of Removal will be served on all parties.
20.
A true and correct copy of this Notice of Removal will be filed with the Circuit
Court of the 17th Judicial Circuit in and for Broward County, Florida.
WHEREFORE, defendant PCNA requests that the action described in this Notice of
Removal and now pending in the Circuit Court of the 17th Judicial Circuit in and for Broward
County, Florida, be removed to the United States District Court for the Southern District of
Florida, and that the case proceed in this Court as an action properly removed thereto.
Dated: February 19, 2014
Respectfully submitted,
By: __/s/ Gavin C. Gaukroger ________________
James C. Cunningham, Jr.
Florida Bar No. 0276197
Gavin C. Gaukroger
Florida Bar No. 76489
BERGER SINGERMAN LLP
350 East Las Olas Boulevard, Suite 1000
Fort Lauderdale, FL 33301
Telephone: (954) 525-9900
Facsimile: (954) 523-2872
jcunningham@bergersingerman.com
ggaukroger@bergersingerman.com
Attorneys for Defendant, Porsche Cars
North America, Inc.
And
5
Case 0:14-cv-60413-DTKH Document 1 Entered on FLSD Docket 02/19/2014 Page 6 of 7
James R. Vogler (application for pro hac
vice admission to be filed)
Owen H. Smith (application for pro hac
vice admission to be filed)
Vito S. Solitro (application for pro hac
vice admission to be filed)
BARACK FERRAZZANO KIRSCHBAUM &
NAGELBERG LLP
200 West Madison, Suite 3900
Chicago, Illinois 60606
(312) 984-3100
james.vogler@bfkn.com
owen.smith@bfkn.com
vito.solitro@bfkn.com
Attorneys for Defendant
Porsche Cars North America, Inc.
6
Case 0:14-cv-60413-DTKH Document 1 Entered on FLSD Docket 02/19/2014 Page 7 of 7
CERTIFICATE OF SERVICE
I, Gavin C. Gaukroger, one of the attorneys for Defendant, do hereby certify that I caused
a true and correct copy of the foregoing instrument to be served upon the following by U.S. Mail,
Postage Prepaid, and electronic mail, this 19th day of February 2014:
A. Edward Quinton, III
(Fla. Bar No. 464074)
Kenneth L. Paretti
(Fla. Bar No. 779301)
QUINTON & PARETTI, P.A.
80 S.W. Eighth Street, Suite 2150
Miami, Florida 33130
T: (305) 358-2727
F: (305) 358-0779
equinton@quintonparetti.com
kparetti@quintonparetti.com
Roy A. Diaz
(Fla. Bar No. 767700)
SHD LEGAL GROUP, P.A.
P.O. Box 11438
Ft. Lauderdale, Florida 33339
T: (954) 564-2050
F: (954) 564-9252
rdiaz@shdlegalgroup.com
answers@shdlegalgroup.com
Attorneys for Plaintiffs
By: /s/ Gavin C. Gaukroger
Gavin C. Gaukroger, Esq.
7
Case 0:14-cv-60413-DTKH Document 1-2 Entered on FLSD Docket 02/19/2014 Page 1 of 40
EXHIBIT “A”
Case 0:14-cv-60413-DTKH Document 1-2 Entered on FLSD Docket 02/19/2014 Page 2 of 40
Filing# 9752978 Electronically Filed Ol/31/2014 09:01:37 AM
*
..,_
*
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�
IN THE CIRCUIT COURT OF
THE
00
JUDICIAL CIRCUIT rN AND FOR
......
BROWARD COUNTY, FLORIDA
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CIVIL DIVISION
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CASE NO. CACE-14-001928
COPANS MOTORS, INC., a Florida c orporation ,
d/b/a CHAMPION PORSCHE; and THE FLORIDA
DEPARTMENT OFHTGHWAY SAFET Y AND
STATE OF FLORIDA
for the use- and benefit of C OPANS MOTORS, INC.
MOTOR VEHICLES and
Plaintiffs,
0
JJ:..
�
0
:::r::
ti
�
SUMMONS
vs.
PORSCHE CARS NORTH AMERICA, INC.,
a Delawa re corporation,
Defendant.
.!
______
0
u
THE STATE OF FLORIDA
�
To
i3:
�
P=l
'Ci
Each Sheriff of the State:
YOU ARE COMMANDED to serve this Summ on s, and a copy of the Complaint, Request for Production
and Interrogatories in this action on Defendant:
�JJ:..
Porsche Cars
Nmth America, Inc.
By serving its Registered Agent:
CT Corporation System
*
*
*
1200 S. Pine island Road
Plantation, FL 33324
Each Defendant is requ ired to serve wtitten defenses to the Complaint on
Plaintiff's attorney:
Quinton , fll, Esquire
& Paretti, P.A.
80S. W. 8 Street, Sui te 2150
Miami, Florida 33130
A. Edward
Quinton
·
PH: (305) 358-2727
Email: !'!<JUinton@guintonparetti.com
within twenty (20) days after service of this Sununons on th at Defendant, exclusive of the day
of service, and to file
d efens es with the Clerk of this Court either be fore service on Pl a in tiffs attorney or immediately
thereafter. If a Defendant fail s to do so , a default will be entered a gainst that Defendant for the relief demanded in the
the original of the
Complaint.
HOWARD FORMAN
Clerk of the Courts
JAN 312014
. .......... Date:
. . ..
. . . .. ........... .
..
.
..
.
.
. . .. .. .
Case 0:14-cv-60413-DTKH Document 1-2 Entered on FLSD Docket 02/19/2014 Page 3 of 40
Filing# 9701604 Electronically Filed 01/29/2014 10:10:43
PM
IN THE CIRCUIT COURT OF THE
17TH
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
CIVIL DIVISION
CASE NO.
COPANS MOTORS, INC., a Florida corporation,
d/b/a CHAMPION PORSCHE; and CO PANS
MOTORS, INC., in the name of the FLORIDA
DEPARTMENT OF HIGHWAY SAFETY AND
MOTOR VEHICLES and STATE OF FLORIDA
for the use and benefit of CO PANS MOTORS, INC.
Plaintiffs,
vs.
PORSCHE CARS NORTH AMERICA, INC.,
a Delaware corporation,
D efendant.
--------�/
COMPLAINT
Plaintiff, COPANS MOTORS, INC., a Florida corporation, d/b/a CHAMPION PORSCHE
("Champion"); and COPANS MOTORS, INC., in the name of the FLORIDA DEPARTMENT
OF HIGHWAY SAFETY AND MOTOR VEHICLES and STATE OF FLORIDA for the use and
benefit of COPANS MOTORS, INC. ("Champion"), by and through the undersigned counsel,
hereby sue Defendant, PORSCHE CARS NORTH AMERICA, INC. ("PCNA") and states
as
follows:
Jurisdiction and Venue
1,
This is an action for both damages and injunctive relief.
2.
Champion is a Florida corporation with its principal place of business in Pompano
Beach,. Broward County, Florida.
Case 0:14-cv-60413-DTKH Document 1-2 Entered on FLSD Docket 02/19/2014 Page 4 of 40
3.
PCNA is a Delaware corporation with its principal place of business located in
Atlanta, Georgia and conducts business throughout the State of Florida, including Broward
County, Florida.
4.
·
Pursuant to Florida Statute §26.012, this Court has jurisdiction over the issues
herein r aised and the amount in controversy exceeds the minimum jurisdictional limits of this
Court.
5.
Pursuant to Florida Statute §47.051, venue is proper in this Court since the cause
of actions accrued in Broward County, and Defendant has agents and/or other representatives in
Broward County.
Parties
6.
Champion is a ''franchised motor vehicle dealer" as defined in Florida Statute
§320.27(1)(c)l. with its principal place of business loca�ed at 500 West Copans Road, Pompano
Beach, Florida 33064.
7.
PCNA is the U.S. distributor of Porsche brand motor vehicles, using a network of
authorized dealers, including Champion, throughout the United States. PCNA is a "Distributor"
as defined in Florida Statute §320.60(5) and a "Licensee" as defined in Florida Statute §320.60(8).
8.
Champion and PCNA are parties to a "franchise agreement" as defined in Florida
Statute §320.60(1).
9.
Champion is a ''person" as defined by Florida Statute §320.60(12) and is a "motor
vehicle dealer" as defined by Florida Statute §320.60(11)(a). PCNA is a ''person" as defined by
Florida Statute §320.60(12).
10.
PCNA imports into the United States Porsche brand vehicles and parts and
accessories manufactured in Europe by Dr. Ing. h.c. F.Porsche AG (hereinafter " Porsche AG").
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PCNA is a wholly-owned subsidiary of Porsche AG. Upon information and belief, Porsche AG
originates, establishes and creates the product design, engineering, pricing and determines the
availability of Porsche motor veh icles.
11.
PCNA maintains a network of dealerships throughout the United States. This
network of dealerships is made up of franchised dealers such as Chan1pion. Pursuant to franchise
agreements with its dealers, PCNA agrees to sell the dealers new Porsche vehicles for resale.
PCNA provides a comprehensive warranty on new Porsche vehicles and gives the Porsche
franchised dealers the right to perform the warranty service and repairs on such new Porsche
vehicles and get paid for the warranty service and repairs by PCNA. Further, franchised dealers
have the right to sell new Porsche parts.
12.
It is only pursuant to a Porsche franchise agreement that dealers may sell new
Porsche vehicles, perform Porsche motor vehicle warranty repairs and sell new Porsche parts.
Franchise Agreement
13.
PCNA does not negotiate the terms of its franchise agreements. PCNA mainta ins
and holds significant unequal bargaining power regarding the terms of its franchise agreements
with the Porsche franchised dealers.
14.
Pursuant to a franchise agreement with PCNA, Champion has been a Porsche
franchised dealer s ince 1988.
15.
The Porsche franchise agreement has two sections. The first section is the Porsche
Dealer Sales and Service Agreement also referred to as the "Dealer Sales and Service Agreement"
and it identifies the specific dealer , including the dealer's specific address, authorized location and
ovmers and is formally executed by the parties. A copy of Champion's current Porsche Dealer
Sales and Service Agreement is attached hereto as Exhibit 1 (hereinafter "Champion Dealer
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Pursuant to Section X ("Additional Provision") of the Champion Dealer
Agreement").
Agreement, incorporated into and made a part of the Champion Dealer Agreement are the
"Questions and Answers Related to Porsche Dealer Agreement" which were adopted into the
Stipulated Final Order of the Department of Highway Safety & Motor Vehicles on January 14,
2005. The "Questions and Answers Related to Porsche Dealer Agreement" are attached hereto as
Exhibit 2 and shall hereinafter also be referred to as "Champion Dealer Agreement Supplemental
Terms" .
16.
The second part of the Porsche franchise agreement is the Porsche Dealer Sales and
Service Agreement Standard Provisions, also referred to as the "Standard Provisions". PCNA's
Standard Provisions are significantly the same for all of its nationwide Porsche franchised dealers.
A copy of Champion's current Porsche Dealer Sales and Service Agreement Standard Provisions
(referred to as "Champion Standard Provisions") is attached hereto as Exhibit 3. The Champion
Dealer Agreement (Exhibit 1 ), Champion Dealer Agreement Supplemental Terms (Exhibit 2) and
the Champion Standard Provisions (Exhibit 3) may hereinafter be jointly referred to as the
"Champion Franchise Agreement".
17.
The Champion Franchise Agreement requires Champion to acquire real estate and
have facilities which comply with PCNA's current facility standards as to size, appearance,
signage, hours of operations, exclusivity and corporate identity.
18.
The Champion Franchise Agreement requires Champion to comply with PCNA's
standards relating to facility image and equipment. PCNA requires Champion to hire sufficient
dealership staff and to conduct its own programs for training and send employees to PCNA's
training programs.
19.
PCNA requires Champion to provide and maintain capital to perform its obligations
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under the Champion Franchise Agreement and Champion is required to maintain sufficient
working capital, net worth, wholesale credit lines and other lines of credit in accordance with the
Champion Franchise Agreement.
20.
In the Champion Franchise Agreement, PCNA agreed that it shall refrain from
conduct which may be detrimental to Champion.
21.
Pursuant to the Champion Franchise Agreement, PCNA assigns Champion a
geographic area called a "Primary Area of Responsibility", also referred to as PAR. Pursuant to
the Champion Franchise Agreement, Champion shall be responsible for aggressively and
effectively marketing and selling Porsche products and services in its PAR. The PAR is used by
PCNA to evaluate Champion's performance of its o bligation.
PCNA regularly evaluates
Champion for sales performance and service performance and Champion consistently exceeds
PCNA's performance requirements.
22.
For years, Champion has requested to purchase additional new Porsche vehicles
from PCNA for sale to the consuming public over and above the Porsche vehicles which PCNA
allocates to Champion. However, PCNA advised that it did not have any additional vehicles to
sell to Champion.
23.
To satisfy PCNA's franchise requirements Champion has made a significant
financial investment in real estate, facilities, personnel and other assets in order to have the right
to purchase new Porsche vehicles from PCNA for sale to the consuming public. In fact, since
1988 Champion has invested tens of millions of dollars in its Porsche business to satisfy PCNA's
requirements and develop a successful Porsche dealership, and create significant customer
goodwill in its business and in favor of Porsche motor vehicles.
24.
Champion has been number one in total sales volume for Porsche vehicles in the
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United States for all U. S. Porsche dealers every month since 1988 except for one month,
specifically December 20 1 1. Champion has performed well regarding customer satisfaction and
has consistently improved and upgraded its facility. Since 1988, Champion has purchased over
one billion two hundred and fifty million ($ 1,250,000,000.00) dollars in cars and parts from
PCNA.
25.
In effect, Champion is a "customer" of PCNA, purchasing new Porsche vehicles
from PCNA. Thus, by being number one in total sales volume for new Porsche vehicles,
Champion has been PCNA's best customer regarding the sale of new Porsche vehicles by PCNA
to its dealers in the United States.
26.
In and around 201 1, PCNA proposed new facility guidelines for its United States
Porsche dealerships. Regarding Champion, PCNA sought to have the new facility guidelines
implemented in such a way which, pursuant to local government code, would have required
Champion to significantly demolish its current sales and service facility.
PCNA's facility
renovation plan would have significantly diminishing Champion's ability to run its business and
service Porsche customers and would have severely damaged Champion's business and customer
goodwill. Champion proposed to build a new sales facility and showroom on its most visible
section of its current property, which facilities would not only be in compliance with the PCNA
new facility guidelines, they will also provide over double the current new car showroom square
footage. Champion's facility plans will satisfy the specific PCNA requirements, but not damage
Champion's business and will not interrupt Champion's service to Porsche customers.
27.
The Champion Franchise Agreement states that although Champion agrees to use
its best efforts to actively promote the purchase of Porsche motor vehicles by customers, " best
efforts does not require unreasonable, unwarranted or impractical efforts and expenditures of time
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and money out of all proportion to economic reality." (Exhibit 2, page 4) PCNA provides in the
Champion Franchise Agreement that "a party under a best efforts obligation is allowed to give
reasonable consideration to its own interest." (Exhibit 2, page 4)
28.
Regardless of these "best efforts" provisions in the Champion Franchise Agreement
and regardless of the fact that PCNA's proposed facility plan, due to government code provisions,
would severely damage and possible destroy Champion's Porsche business and Porsche customer
goodwill and regardless of the fact that Champion's alternative plan would provide a new sales
facility in compliance with PCNA's guidelines, PCNA refused to fully consider or approve, in
writing, Champion's construction plan which Champion has obligated itself to construct in
furtherance of the "best efforts" to comply with PCNA's proposed new facility guidelines. In
order to comply with PCNA's facility guidelines, but not damage and/or destroy its business,
Champion proceeded with building a new sales facility within PCNA's guidelines and to upgrade
the existing dealership facility, all which will cost Champion millions of dollars.
29.
Champion is following the new PCNA facility guidelines and has acted in
accordance with the Champion Franchise Agreement.
However, PCNA is discontented and
disgruntled by Champion not following PCNA's facility renovation plan, even if Champion is
following PCNA's facility guidelines.
Florida Franchise Law
30.
There is a vast disparity in economic power and bargaining strength between
Champion and PCNA which enables PCNA to dictate the terms of the franchise agreement.
31.
A U.S. Congressional committee, addressing the disparity in bargaining power
between motor vehicle manufacturers and dealers concluded that this vast disparity in economic
power and bargaining strength has enabled the manufacturer to determine arbitrarily the rules by
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which the manufacturer and dealer conduct their business. The Congressional committee went on
to describe the dealer as "easy prey" for domination by the manufacturer. The U. S. Circuit Court
for the Eleventh Circuit has acknowledged the "harsh practices large manufacturers had inflicted
upon franchisees."
32.
Porsche chooses to separate the vehicle manufacturing function and vehicle
distribution to dealers function between a German parent company and a U. S. distribution
company. Under Florida Statute §320.60(8) both· are "Licensees" and the disparity in bargaining
power with dealers applies to both.
33.
The U.S. Congress, U. S. Supreme Court, other federal and state courts and State
Legislatures have acknowledged (1) the economic imbalance between national motor vehicle
manufacturers and the local dealers and (2) the historically harsh practices inflicted by motor
vehicle manufacturers on dealers. As a result, dealer protection laws have been enacted with the
specific intent to protect dealers and insure fair dealings at all levels between motor vehicle
manufacturers, the dealers and the consuming public. The Florida Legislature passed the Florida
Dealer Protection Act, specifically Florida Statutes §§320.60-320.70 to protect Florida dealers
from such harsh practices.
34.
In light of the significant demands that PCNA and other distributors and
manufacturers place on their franchised motor vehicle dealers and the significant financial
investment which PCNA and other distributors and manufacturers require from dealers a nd in light
of the vast disparity in economic power and bargaining strength in favor of manufacturers and
distributors, especially related to the franchise agreement terms, the Florida Legislature passed
Florida Statute §320.641 which identifies specific restrictions and limitations on the rights and
ability of a manufacturer or distributor to terminate a dealer's franchise agreement.
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35.
Specifically, Florida Statute §320.64 1( 1)(a) states that a manufacturer or distributor
(which are "licensees" under the statute) shall give written notice to the motor vehicle dealer and
the Florida Department of Motor Vehicles of the licensee's intention to discontinue or cancel a
franchise agreement, "together with the specific grounds for such action."
36.
Further, the Florida Legislature in Florida Statute §320.64 1(3) specifically provides
the limited grounds upon which a distributor may terminate a franchise agreement and puts the
burden of proof on the distributor in the event that the distributor seeks to discontinue or cancel a
franchise agreement.
37.
Pursuant to Florida Statute §320.64 1(3), a distributor's discontinuation or·
cancellation of a franchise agreement is unfair and prohibited if: ( 1) it is not clearly permitted by
the franchise agreement; (2) it is not undertaken in good faith; (3) it is not undertaken for good
cause; or (4) it is based on an alleged breach of the franchise agreement which is not in fact a
material and substantial breach; or (5) if the grounds relied upon for termination, cancellation, or
non-renewal have not been applied in a uniform and consistent manner by the
manufacturer/distributor. These five statutory elements which the distributor has the burden of
proof to establish to terminate a dealer's franchise agreement will hereina fter be referred to as the
"Termination Elements".
September 23, 2013 Grass Roots Meeting in Atlanta, Georgia
38.
As of September 23, 20 13, Champion had been a Porsche franchised dealer for 25
years and had invested tens of millions of dollars in real estate, facilities, personnel, marketing and
advertising of Porsche products, had complied with PCNA's substantial franchise requirements
and had established significant customer goodwill for the Porsche products in both sales and
service and was for many years the top sales performer, which benefitted PCNA.
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39.
On September 23, 2013, PCNA hosted a Grass Roots Meeting in Atlanta, Georgia
and invited Porsche dealership representatives in the Southeast Region to attend. The PCNA
invitation did not identify what would be presented at the meeting.
40.
PCNA did not indicate in its email invitation to the Grass Roots Meeting that PCNA
would reveal any confidential information. At the meeting, PCNA did not have personnel at the
"check-in" location who would check, identify or monitor who attended the meeting. PCNA did
not require attendees to turn in their electronic devices before entering the presentation room and
did not instruct people in the room not to take pictures or video the presentation.
41.
PCNA did not take any reasonable actions to identify any presentation information
as confidential or to keep such presentation information confidential at the Grass Roots Meeting.
42.
PCNA did not instruct the people in the presentation room that specific information
in the presentation was confidential. PCNA did not lock the presentation room doors during the
presentation and people were able to enter the room during the presentation. PCNA, which had
multiple employees in the presentation room, did not stop people in the room from taking pictures
and video with phones and tablets.
43.
Actions which are standard in the automotive industry when a manufacturer or
distributor wants to keep new vehicle information confidential, include specifically checking
identification at the door of the presentation room, confiscating all electronic equipment from
attendees prior to entering the presentation room, having attendees execute confidentiality
agreements and retaining security personnel to oversee these security measures and prevent
photographs from being taken during the presentation. None of these actions were taken by PCNA
at the Grass Roots Meeting.
44.
The information provided to the attendees at the Grass Roots Meeting was not
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highly confidential or proprietary and was not trade secret business and marketing information.
PCNA did not make any reasonable efforts to protect the con fidentiality of the information
presented by PCNA at the Grass Roots Meeting.
45.
With the knowledge of PCNA representatives, Mitra Maraj, an employee of
Champion who attended the Grass Roots Meeting, took pictures of three presentation slides.
46.
Subsequently, the pictures of the three slides were posted to a website of a third
party company which is a separate business at a separate location from Champion. The third party
company does not sell new Porsche vehicles, but rather performs services such as selling
aftermarket products for installation on vehicles. The pictures were never posted to Champion's
website.
47.
A PCNA manager telephoned Dave Maraj, the President of Champion, and
requested that he take steps to have the third party company remove the posted pictures of the three
slides. At the time Dave Maraj received the phone call from the PCNA manager, Dave Maraj was
not aware of the photographs of the three slides and was not aware that the photographs of the
three slides had been posted to the third party company website.
Dave Maraj initiated
communication which quickly resulted in the third party company removing the pictures of the
three slides from its website. The pictures were posted on the third party company website for less
than 48 hours.
48.
The three slides addressed the following vehicles: (1) the Porsche Macan, (2) the
Porsche 911 Targa, and (3) the Porsche Boxter GI S and Cayman GI S models. A significant
amount of information in these three slides was already in the public domain prior to the posting
of the pictures of the three slides by the third party company.
49.
If any of the information on the three slides could be considered a trade secret, upon
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information and belief, the information on the three slides belonged to Porsche AG, not PCNA.
50.
Approximately two months after the posting of the picture of the Porsche Macau
slide, the Porsche Macan and all information regarding such vehicle was formally disclosed by
PCNA and/or Porsche AG at the Los Angeles Auto Show on November 20, 20 13. Approximately
3 Y2 months after the posting of the picture of the Porsche 9 1 1 Targa slide, the Porsche 9 1 1 Targa
and all information regarding such vehicle was formally disclosed by PCNA and/or Porsche AG
at the Detroit Auto Show onJanuary 13, 20 14.
5 1.
Significant information regarding the Porsche Boxter GTS and Cayman GTS
models have been disclosed to the public, including, but not limited to, actual photographs of these
vehicles as ofJanuary 17, 20 14.
52.
As of the filing of this Complaint, none of the four vehicles identified in the subject
three slides have been provided to any United States Porsche dealers and none of the four vehicles
are available for purchase and delivery to Porsche consumers.
53.
The posting of the pictures of the three slides by the third party company did not
adversely impact the image of or demand for the Porsche Macan, Porsche 9 11 Targa, Porsche
Boxer GTS and Cayman GTS models.
54.
The pictures of the three slides may also hereinafter be referred to as the "Disclosed
Information".
Georgia Lawsuit Filed by PCNA
55.
On or about November 7, 20 13 , PCNA filed a lawsuit in Georgia Superior Court in
Atlanta, Georgia against Champion and also against individuals, Jim Hahn and Mitra Maraj. A
copy of the Georgia Complaint is attached hereto as Exhibit 4.
56.
PCNA asserts that the defendants violated Georgia Statutes § 10-1-760 et seq.,
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specifically alleging misappropriation of trade secrets.
57.
Champion and co-defendants, Jim Hahn and Mitra Maraj, thereafter filed a Verified
Answer and Counterclaim. A copy of the Verified Answer and Counterclaim in the Georgia case
is attached as Exhibit 5.
PCNA Issues a Notice of Termination of Champion's Franchise Agreement
58.
On or about November 8, 2013, PCNA sent to Champion a Notice of Termination
of Porsche Dealers Sales and Service Agreement (hereinafter "Notice of Termination"). A copy of
the Notice of Termination is attached as Exhibit 6.
59.
As identified above, the Florida Dealer Protection Act, specifically Florida Statute
§320.641(1)(a) requires PCNA to provide written notice to Champion and the Florida Department
of Motor Vehicles of PCNA's intention to discontinue or terminate a franchise agreement,
"together with the specific grounds for such action."
60.
In PCNA's Notice of Termination the grounds identified by PCNA is that PCNA
"has the right, subject to the requirements of Fla. Stat. §320.60 et seq., to terminate the Dealer
Agreement under Sections L.2.r and L.2.n of the Standard Provisions."
61.
Section L.2.r is found in the Champion Standard Provisions (Exhibit 3) and Section
L.2.n. is found in the Champion Dealer Agreement Supplemental Terms (Exhibit 2). These
sections state as follows:
2.
Termination due to Certain Acts or Events .
. . . Accordingly, DEALER agrees that if it engages in any of the
following types of conduct, Porsche shall have the right to terminate
this Agreement:
n.
willful failure of DEALER to comply with any laws or
regulations relating to the sale, service, or repair of motor vehicles;
r.
breach or violation by DEALER of any other term or
provision of trds Agreement.
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62.
Motor vehicle dealers are subject to many laws which regulate the activity of motor
vehicle sales, service, and repair. However, the Georgia statutes which PCNA alleges Champion
violated and cited by PCNA in its Notice of Termination do not mention, identify or relate to the
activity of sales, service or repair of motor vehicles.
63.
PCNA cites three Georgia state statutes in its Notice of Termination, specifically:
(1) O.C.G.A.§16-11-62(2) which is Georgia's criminal wiretapping law and (2) Georgia's
misappropriation of trade secrets statutes, specifically, O.C.G. A.§§16-8-13 (criminal statute) and
O.C.G.A.§§l0-1-761 et seq. (civil statute) (together jointly referred to as "Georgia Trade Secret
Statutes").
64.
The Georgia wiretapping law was enacted with the intended purpose to protect
persons from an invasion of privacy, such as filming the activity of another in a private place
(usually their home). The Grass Roots Meeting was not a "private place" as intended in the
Georgia wiretapping law and the pictures of the three slides were not of "the activities of another
which occur in any private· place and out of public view". The Georgia wiretapping law relates to
"invasion of privacy". The Georgia wiretapping law is not a law "relating to the sales, service or
repair of motor vehicles."
65.
The Georgia Trade Secret Statutes are intended to protect a person's information
which derives economic value from not being generally known to other persons who can obtain
economic value from its disclosure or use. The Georgia Trade Secret Statutes require that the
.
person must make efforts that are reasonable under the circumstances to maintain the information's
secrecy. Contrary to the intent of the Georgia Trade Secret Statutes, it was always PCNA's intent
to disclose the information on the three slides, as opposed to keeping it from being generally known
to other persons. The Georgia Trade Secret Statutes do not address, mention or relate to the sale,
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service, or repair of motor vehicles.
66.
The second "specific grounds" for termination found in Section L.2.r is a vague
catchall provision stating that DEALER breached or violated "any other term or provision of this
Agreement". In the Notice of Termination, PCNA cites Section C.l and also references "principles
of good faith and fair dealing".
67.
Section C. I states as follows:
DEALER shall actively, ethically and effectively promote through
DEALER's own advertising and sale promotion activities, the
purchase of POR SCHE PRODUCT S by customers.
68.
Section C.l is in a section of the Champion Franchise Agreement addressing
"Dealer Promotion and Sales of Porsche Products".
Section C. I is intended to address the
requirement that DEALER conduct its "own advertising and sale promotion activities" (versus
such activities initiated by PCNA) and the term "ethically" is intended to be a prohibition against
the D EALER creating and using deceptive or misleading advertisements or sale promotions.
Section C.l was not intended to address PCNA's allegations regarding pictures of three slides
which were not in any way used by D EALER for its own advertising and sale promotion activity,
but rather were simply placed on a third party company website for less than 48 hours. PCNA has
made no allegations that the pictures which were posted were themselves misleading or deceptive.
69.
Mitra Maraj did not do anything unethical regarding taking the three pictures of the
three slides. The information on the three slides were not trade secrets and PCNA did not make
any reasonable efforts under the circumstances to protect the confidentiality of the three slides.
70.
PCNA's reference to "principles of good faith and fair dealing" in the Notice of
Termination is not a "term or provision" of the Champion Franchise Agreement and therefore,
cannot be "grounds" for termination under Section L.2.r.
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7 1.
PCNA's Notice of Tetmination is deficient and does not allege actions or violations
by Champion which are prohibited in the Champion Franchise Agreement. PCNA has failed to
satisfy the Florida Dealer Protection Act requirement that its Notice of Termination must state
specific grounds for such termination.
72.
Further, Champion did not violate the cited Georgia Statutes or breach the
Champion Franchise Agreement.
73.
As a result of the actions of PCNA, Champion has had to hire legal counsel to
represent it. Champion has retained Quinton & Paretti, P .A. and SHD Legal Group, P .A. and has
agreed to pay counsel reasonable attorneys' fees for their services.
PCNA Seeks to Add Additionai·Porsche Dealership in Broward County
74.
On or about September 5, 2013, PCNA communicated to Champion its intention to
approve an additional Porsche dealership in western Broward County, Florida.
75.
On September 23, 2013, Champion communicated to PCNA tha t Champion's
information regarding the western Broward County automotive market indicated there was not a
need for an additional Porsche dealership in that region. Champion further expressed that PCNA ' s
shortage of vehicle allocation to Champion in the past was a concern regarding PCNA's intention
to add another Porsche dealership, especially when Champion had sold its entire inventory in the
last two years. Based on information from PCNA, if PCNA supplied new Porsche vehicles to an
additional west Broward Porsche dealer, Champion's vehicle allocation would be reduced.
76.
Upon information and belief, prior to PCNA's September 5, 2013 communication
to Champion, PCNA had already identified the party to which it wanted to award the new west
Broward Porsche franchise, specifically Penske Automotive Group, Inc. or one of its affiliates.
The Penske entity which PCNA intends to award the new west Broward Porsche dealership shall
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hereinafter be referred to as "Penske".
77.
The demographic data and other data and factors which identify and evidence the
customer demand for Porsche vehicles do not identify enough Porsche sales opportunity in and
around the proposed new dealership location in west Broward County to support the new Porsche
dealership. The new Porsche dealership will not capture sufficient lost sales opportunity to
financially succeed and therefore will seek to take sales and service historically captured by
Champion in and around Champion's PAR. This will significantly damage Champion.
78.
On December 30,2013,a notice from PCNA of its intent to establish a new Porsche
franchised dealer to be located at 4645 Volunteer Road, Davie, (Broward County) Florida 33330
·was published in the Florida Administrative publication. This location shall be referred to as the
"Penske Location". A copy of the puolication is attached as Exhibit 7.
COUNT I
Violation of F.S. §320.64(8)- Injunctive Relief
(Termination)
79.
The allegations of paragraphs 1 through 78 are realleged as if fully set forth herein.
80.
This is an action for injunctive relief pursuant to Florida Statute §320.695 for
PCNA's violation of Florida Statute §320.64(8).
81.
Pursuant to Florida Statute §320.695, this action is brought by Champion in the
name of the Florida Department of Highway Safety and Motor Vehicles and the State of Florida
for the use and benefit of Champion.
82.
Florida Statute §320.64(8) provides that PCNA is prohibited from cancelling or
terminating a franchise agreement in violation of any provisions of Florida Statute §320.641.
83.
PCNA sent a Notice of Termination to Champion alleging that the Champion
Franchise Agreement was subject to termination because Champion had breached certain franchise
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agreement provisions and the Dealer committed "willful failure" to comply with laws "relating to
the sale, service, or repair of motor vehicles" as set forth in Exhibit 6.
84.
In the Notice of Termination, PCNA advised Champion that the Champion
Franchise Agreement is terminated effective on the date that is 90 calendar days after the date the
Notice of Termination was received by Champion.
85.
Florida Statute §320.64 1 provides that PCNA may not terminate the Champion
Franchise Agreement unilaterally through the Notice of Termination, but rather PCNA has the
burden of proof to establish that such termination action is fair and not prohibited.
86.
Florida Statute §320.64 1(3) provides that a discontinuation or cancellation of a
franchise agreement is unfair if: ( 1) it is not clearly permitted by the franchise agreement; (2) it is
not undertaken in good faith; (3) it is not undertaken for good cause; (4) it is based on an alleged
breach of the franchise agreement which is not in fact a material and substantial breach; or (5) if
the grounds relied upon for termination or cancellation have not been applied in a uniform and
consistent manner by the licensee (which includes distributors such as PCNA). (As previously
identified, these five statutory elements will be referred to as the "Termination Elements".)
87.
Florida Statute §320.64 1 requires that PCNA provide written notice to Champion
with the "specific grounds" for such termination. PCNA's "specific grounds" are identified in
paragraphs 59-70 supra.
88.
PCNA's "specific grounds" do not satisfy the required Termination Elements and
therefore, PCNA is in violation ofFlorida Statute §320.64 1 and therefore PCNA is prohibited from
terminating the Champion Franchise Agreement pursuant to Florida Statute §320.64(8).
89.
PCNA has not established or satisfied the Termination Elements (see paragraph 37
supra) as follows:
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a.
PCNA 's termination is not clearly permitted by the franchise agreement,
including, but not limited to, the fact that the Georgia laws which PCNA cites for termination are
not laws "relating to the sale, service, or repair of motor vehicles" and the allegations against
Champion were not actions of the DEALER, promoting, through DEALER's own advertising and
sale promotion activities, the purchase of Porsche Products by customers. ( See paragraphs 60-70
supra.)
b.
PCNA 's proposed termination is not undertaken in good faith, including,
but not limited to, that "good faith" implies honesty and reasonableness and for PCNA to seek the
most extreme sanction·against Champion for PCNA's minor allegations regarding the pictures of
three presentation slides as more fully set forth supra, lacks both honesty and reasonableness and
is acting in bad faith; PCNA's discontentment and disgruntlement regarding Champion's refusal
to proceed with PCNA's unreasonable facility plans, as well as, given the timing of PCNA's
various actions, PCNA's implicit ulterior motive to replace Champion with Fenske at the Fenske
Location, establish that PCNA's proposed termination is not undertaken in good faith.
c.
PCNA 's proposed termination is not undertaken for good cause, including,
but not limited to, the fact that the basis for PCNA's proposed termination is a minor event,
especially when viewed in light of the substantial investment by Champion over 25 years and that
PCNA suffered no harm from the alleged actions of Champion; the posting of pictures on the third
party company's website is not good cause to destroy Dave Maraj's lifetime investment through
Champion and the significant financial assets which will be destroyed by such termination; PCNA
itself disclosed all of the information on two of the four vehicles and Champion did not gain any
advantage or benefit from such posting; PCNA fails to establish good cause for the most extreme
sanction of franchise termination under the facts of this case.
19
I
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Case 0:14-cv-60413-DTKH Document 1-2 Entered on FLSD Docket 02/19/2014 Page 22 of 40
d.
PCNA ' s proposed termination is based on an alleged breach of the
franchise agreement which is not in fact a material and substantial breach, including, but not
limited to, the fact that the Disclosed Information (see paragraph 54, supra) did not caus� any
financial harm to PCNA or cause any detriment to Porsche vehicles and PCNA subsequently fully
disclosed all of the Disclosed Information or it was othe;wise put into the public domain by third
parties. 1
e.
The grounds relied upon by PCNA for termination have not been applied in
a uniform and consistent manner by PCNA, including, but not limited to, the fact that other U.S.
Porsche dealers have obtained and disclosed what PCNA considers to be "trade secrets" and PCNA
did not seek to terminate the other dealers' franchise agreements.
90.
As the author of the Champion Franchise Agreement, PCNA could have clearly
and explicitly identified activities defined under Georgia's wiretapping and trade secret statutes or
otherwise identified the factual allegations in this case as grounds for termination under Champion
Franchise Agreement, Section L.2. Instead, PCNA now tries to retrofit such alleged conduct into
Champion's existing franchise agreement. 2
91.
PCNA is violating Florida Statute §320.641 by seeking to terminate the Champion
Franchise Agreement without establishing or satisfying the Termination Elements and
accordingly,PCNA has violated Florida Statute §320.64(8).
92.
Florida Statute §320.695 provides that "any motor vehicle dealer in the name of the
department and state and for the use and benefit of the motor vehicle dealer, is authorized to make
1
As more specifically set forth throughout the Complaint, Champion did not breach the franchise agreement.
Champion further defends against termination on the basis that PCNA's alleged breach by Champion is not
material and substantial breach.
in fact a
2 Champion reconfirms that even if these actions were identified as grounds for termination under the franchise
agreement, Champion did not violate such prohibition.
20
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application to any circuit comi of the state for the grant, upon a hearing and for cause shown, of a
temporary or permanent injunction, or both, restraining any person ... from violating or continuing
to violate any of the provisions of ss.320.60-320. 70 or from failing or refusing to comply with the
requirements of this law or any rule or regulation adopted hereunder. Such injunction shall be
issued without bond. A single action in violation of the provisions of ss.320.60-320.70 shall be
sufficient to authorize the issuance of an injunction."
93.
PCNA seeks to terminate the Champion Franchise Agreement when such
termination is not undertaken in good faith, is not undertaken for good cause, is based on an alleged
breach of a franchise agreement which is not in fact a material or substantial breach and upon
grounds which PCNA has not applied in a uniform and consistent manner, all in violation of
Florida Statute §320.641.
94.
Accordingly, a permanent injunction should be issued by this Court pursuant to
Florida Statute §320.695 finding that such attempted termination is unfair and/or prohibited and
enjoining and restraining PCNA from terminating Champion's franchise agreement pursuant to
PCNA's Notice of Termination and restraining PCNA from violating Florida Statutes §320.64(8)
and §320.641.
WHEREF ORE, Champion, in the name of the Florida Department of Highway Safety and
Motor Vehicles and the State of Florida for the use and benefit of Champion, hereby requests that
a permanent injunction be issued by this Court pursuant to Florida Statute §320.695 finding that
PCNA's attempted termination of the Champion Franchise Agreement is unfair and/or prohibited
and enjoining and restraining PCNA from terminating Champion's Franchise Agreement pursuant
to PCNA's Notice of Termination and restraining PCNA from violating Florida Statutes
§320.64(8) and §320.641 and that PCNA's Notice of Termination is of no force and effect.
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Further, Champion requests entry of an Order awarding Champion its reasonable attorney's fees
and costs as provided in Florida Statutes Chapter 320, including Florida Statute §320.64 1(6).
COUNT II
Violation of F.S. §320.64(8) - Da mages
(Termination)
95.
The allegations of paragraphs 1 through 78 and paragraphs 88-91 are realleged as
if fully set forth herein.
96.
This is an action for damages pursuant to Florida Statute §320.697.
97.
Pursuant to Florida Statute §320.697, any person who has suffered pecuniary loss
or who has been otherwise adversely affected because of a violation by a licensee of ss. 320.60320.70, notwithstanding the existence of any other remedies under ss. 320. 60-320.70, has a cause
of action against the licensee for damages and may recover damages therefore in any court of
competent jurisdiction in an amount equaled to 3 times the pecuniary loss, together with costs and
a reasonable attorney's fee to be assessed by the court. Upon a prima facia showing by the person
bringing the action that such a violation by the licensee has occurred, the burden of proof shall
then be upon the licensee to prove that such violation or unfair practice did not occur.
98.
PCNA sent a Notice of Termination to Champion in violation of Florida Statute
§320.64 1, including that the termination is not undertaken in good faith, is not undertaken for good
cause, is based on an alleged breach of the franchise agreement which is not in fact a material or
substantial breach and the grounds relied upon by PCNA for termination have not been applied in
a uniform and consistent manner by PCNA. See paragraphs 88-91, supra.
99.
Champion has suffered and will suffer pecuniary loss and has and will be otherwise
adversely affected because of PCNA's violation of ss. 320.60-320.70, including Florida Statute
§320.641 and §320.64(8).
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WHEREFORE, Champion requests that this Court award Champion recovery of its
damages arising from PCNA's violation of Florida Statute §§320.60-320.70, including Florida
Statute §320.64 1 and §320.64(8) and that such damages be trebled pursuant to Florida Statute
§320.697. Champion further requests that this Court award Champion its costs and reasonable
attorney's fees as provided in Florida Statute §320.697.
COUNT III
Declaratory Judgment Regarding PCNA 's Notice of Termination
(Termination)
1 00.
The allegations of paragraphs 1 through 78 are realleged as if fully set forth herein.
10 1 .
This is an action for declaratory judgment pursuant to Florida Statute §86.021 .
102.
Champion and PCNA are parties to a contract, identified supra as the Champion
Franchise Agreement.
103.
Florida Statute §320.641(l)(a) requires that PCNA provide written·notice of its
intention to discontinue or terminate a franchise agreement, "together with specific grounds for
such actions".
104.
PCNA is currently seeking to terminate the Champion Franchise Agreement and
has cited Sections L.2.r, L.2.n and C. l as the specific grounds for such action.
105.
Sections L.2.r and L.2.n of the Champion Franchise Agreement state:
2.
Termination due to Certain Acts or Events .
. . . Accordingly, DEALER agrees that if it engages in any of the
following types of conduct, Porsche shall have the right to
terminate this Agreement:
n.
willful failure of DEALER to comply with any laws or
regulations relating to the sale, service, or repair of motor vehicles;
r.
breach or violation by DEALER of any other term or
provision of this Agreement.
1()4
.LVV,
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. DEALER shall actively, ethically and effectively promote through
DEALER's own advertising and sale promoti on activities, the
purchase of PORSCHE PRODUCT S by customers.
107.
There exists a bona fide, actual, present practical need for a declaration between
Champion and PCNA as to the meaning and application of Sections L.2.r, L.2.n and C.l and
PCNA's right to terminate Champion's franchise agreement pursuant to these Champion Franchise
Agreement provisions and the facts of this case.
108.
Any ambiguity in the Champion Franchise Agreement must be construed against
PCNA as the author of the contract.
109.
The plain meaning of Section L.2.n is that in order to be proper grounds for
termination, the law m ust be "relating to the sale, service, or repair of motor vehicles." Since the
Georgia statutes which PCNA alleges were violated by Champion are not "relating to the sale,
service, or repair of motor vehicles", Section L.2.n is not a basis for termination under PCNA's
factual allegations. ( See paragraph 60-65, supra.)
110.
The plain meaning of Section C.l is that in order to be proper grounds for
termination, the wrongful conduct must be "through D EALER's [Copans Motors, Inc.] own
advertising and sale promotion activities" and such advertising and sale promotion must be
unethical.
111.
The posting of the pictures of the three slides on the third party company website
was not part of D EALER's [Copans Motors, Inc.] own advertising and sale promotion activities.
Thus, this Court should declare that Section C.l is not a basis for termination under PCNA's factual
allegations (see paragraphs 66-70, supra) and does not support PCNA's termination of the
Champion Franchise Agreement. The posting of the pictures of the three slides on the third party
company website was not unethical because: (1) the information was not trade secret information
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and/or PCNA did not make any reasonable efforts to protect the confidentiality of the information
presented by PCNA at the Grass Roots Meeting and (2) the information posted was not an unethical
advertising or sales promotion activity in that the content was not misleading or deceptive which
is the intended prohibition in the Champion Franchise Agreement.
112.
PCNA's reference to "principles of good faith and fair dealing" in the Notice of
Termination is not a "term or provision" of the Champion Franchise Agreement and therefore
cannot be "grounds" for termination under Section L.2.r.
113.
Plaintiff seeks a declaration of rights as to the controversy between Plaintiff and
Defendant as to whether the Notice of Termination satisfies the statutory requirements and whether
the statutory notice is deficient and accordingly PCNA has failed to comply with the procedures
prescribed in Florida Statute §320.641 and therefore renders voidable any discontinuation of the
Champion Franchise Agreement as provided in Florida Statute §320.641(1 )(b).
WHERE FO RE, Champion requests a declaration from this Court that the Notice of
Termination fails to satisfy the statutory requirements and is deficient, including that the franchise
agreement provisions cited by PCNA do not support termination based on Champion's alleged
misconduct and therefore, the discontinuation or termination is void and of no force and effect.
Further, Champion seeks an award of its reasonable attorney's fees and costs pursuant to Florida
Statutes Chapter 320, including Florida Statute §320.641(6).
COUNT IV
Violation o f F.S. §320.64(18)- Unfair System of D istribution
(Injunctive Relief- New Point)
114.
The allegations of paragraphs 1 through 78 are realleged as if f ully.set forth herein.
115.
This is an action for injunctive relief pursuant to Florida Statute §320.695 for
PCNA's violation of Florida Statute §320.64(18).
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116.
Pursuant to Florida Statute §320.695, this action is brought by Champion in the
name of the Florida Department of Highway Safety and Motor Vehicles and the State of Florida
for the use and benefit of Champion.
117.
PCNA is the U.S. distributor of the Porsche brand motor vehicles. PCNA has
established a system of Porsche motor vehicle distribution by use of a network of franchised motor
vehicle dealers throughout the United States.
118.
PCNA seeks to modify its system of distribution by adding an additional Porsche
franchised dealer at 4 645 Volunteer Road, Davie, (Broward County) Florida 33330, the Penske
Location. The demographic data and other data and factors which identify and evidence the
customer demand for Porsche vehicles do not identify enough sales opportunities in and around
the proposed new Penske Porsche dealership at the Penske Location to support a new Porsche
dealership. A new Porsche dealership will not capture sufficient lost Porsche sales opportunities
to fully financially support the dealership and therefore will seek to take Porsche vehicle sales
historically captured by Champion in and around Champion's PAR. This will significantly
damage Champion.
119.
Further, Champion has sold all of the new Porsche vehicles distributed to it for sale
to consumers by PCNA over the last two years and has requested more vehicles, however PCNA
has stated that it has no additional vehicles to distribute to Champion. With this shortage of new
Porsche vehicles, the addition of an additional dealership would exacerbate this problem.
120.
If there is some lost Porsche sales opportunities in the west Broward County area,
although not sufficient to support a new large Porsche dealership, a reasonable option to capture
potential lost Porsche sales in west Broward County would be to permit Champion, as an existing
Broward County Porsche dealer, to open a satellite dealership location in the west Broward County
26
Case 0:14-cv-60413-DTKH Document 1-2 Entered on FLSD Docket 02/19/2014 Page 29 of 40
area. With Champion's current location working in conjunction with a satellite west Broward
location, which had lower costs than a new , full size d, independent Porsche dealership, the satellite
dealership could address PCNA's perceived lost sales opportunity concerns, without financially
damaging Champion's existing business by seeking to capture Porsche vehicle sales historically
captured by Champion in and surrounding its PAR.
121.
Florida Statute §320.64 states in relevant part :
" ... A licensee . . . shall be liable for claims and remedies provide d in
ss.320.695 . . .for any violation of any of the following provisions. A
licensee [PCNA] i s prohi bited from committing the following acts:
***
(18) The applicant or licensee h as e stablished a system of motor
vehicle ... distribution . . .which otherwi se i s unfair, inequitable,
unreasonably discriminatory, or not supportable by reason and good
c au se after considering the equitie s of the affecte d motor vehicles
dealer or dealers."
122.
PCNA intends to e st ablish a system of distribution which includes the Penske
dealership at the Penske Location which violates Florida Statute §320. 64(18).
123.
E st ablishment of the Penske Porsche dealership as part of PCNA' s system of
distribution i s unfair, inequitable, unreasonably discriminatory, and not supportable by reason and
good c au se after considering the equities of the affected motor vehicle dealer, specifically
Champion.
124.
Florida Statute §320.6 95 provides that "any motor vehicle dealer in the name of
the department and state and for the use and bene fit of the motor vehicle dealer, i s authorized to
make application to any circuit court of the state for the grant, upon a hearing and for cause shown,
of a temporary or permanent injunction, or both, restraining any person ... from violating or
continuing to violate any of the provisions of ss. 320.60-320 .70 or from failing or refu sing to
comply vvith the requirements of this law or any rule or regulation adopted hereunder.
27
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injunction shall be issued without bond. A single action in v iolation of the provisions of ss.320.60320.70 shall be sufficient to authorize the issuance of an injunction. "
1 25.
Accordingly, an injunction pursuant to Florida Statute §320 .695 enjoining and
restraining PCNA from adding another Porsche franchised dealership in west Broward County,
from awarding Fenske a Porsche franchise agreement and from violating Florida Statute
§320.64(18) should be entered by this Court.
WHEREFORE, Champion, in the name of the Florida Department of Highway Safety and
Motor Vehicles and the State of Florida for the use and benefit of Champion, hereby requests entry
of a permanent injunction enjoining and preventing PCNA from adding another Porsche franchised
dealership in west Broward County, from awarding Fenske a Porsche franchise agreement and
from violating Florida Statute §320.64( 1 8). Further, Champion seeks an award of its reasonable
attorney 's fees and costs, including pursuant to Florida Statute Chapter 320.
Regarding Count IV, Plaintiff demands a trial by jury on all issues triable by a j ury.
COUNT V
Violation of F.S. §320.64(18) - Unfair System of Distribution
(Damages - New Point)
1 26.
The allegations of paragraphs 1 through 78 are realleged as if fully set forth herein.
1 27.
This is an action for damages pursuant to Florida Statute §320.697 for PCNA's
violation of Florida Statute §320.64( 1 8) .
1 28.
PCNA is the U.S. distributor of the Porsche brand motor vehicles. PCNA has
established a system of Porsche motor vehicle distribution by use of a network of franchised motor
vehicle dealers throughout the United States.
1 29.
PCNA seeks to modify its system of distribution by adding an additional Porsche
franchised dealer at 4645 Volunteer Road, Davie, (Broward County) Florida 33 330, the Fenske
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Location. The demographic data and other data and factors which identi fy and evidence the
customer demand for Porsche vehicles do not identify enough sales opportunities in and around
the proposed new Penske Porsche dealership at the Penske Location to support a new Porsche
dealership. A new Porsche dealership will not capture sufficient lost Porsche sales opportunities
to fully financially support the dealership and therefore w ill seek to take Porsche vehicle sales
historically captured by Champion in and around Champion's PAR. This w ill significantly .
damage Champion.
1 30.
Further, Champion has sold all of the new Porsche vehicles distributed to it for sale
to consumers by PCNA over the last two .years and has requested more vehicles, however PCNA
has stated that it has no additional vehicles to distribute to Champion. With this shortage of new
Porsche vehicles, the addition of an additional dealership would exacerbate this problem.
13 1.
If there is some lost Porsche sales opportunities in the west Broward County area,
although not sufficient to support a new large Porsche dealership, a reasonable option to capture
potential lost Porsche sales in west Broward County would be to permit Champion, as an existing
Broward County Porsche dealer, to open a satellite dealership location in the west Broward County
area. With Champion's current location working in conjunction with a satellite west Broward
location, which had lower costs than a new, full sized, independent Porsche dealership, the satellite
dealership could address PCNA's perceived lost sales opportunity concerns, without financially
damaging Champion 's existing business by seeking to capture Porsche vehicle sales historically
captured by Champion in and around its PAR.
1 32.
Florida Statute §320.64, Florida Statutes states in relevant part :
" ... A licensee ...shall be liable for claims and remedies provided in
ss.320.697 ...for any violations of any of the following provisions.
A licensee [PCNA] is prohibited from committing the following
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***
(18) The applicant or licensee has established a system o f motor
vehicle . . . distribution ... which othenvise is unfair, inequitable,
unreasonably discriminatory, or not supportable by reason and good
cause after considering the equities o f the affected motor vehicles
dealer or dealers."
133.
PCNA intends to establish a system of distribution which includes the Penske
dealership at the Penske Location which violates Florida Statute §320.64(18).
134.
Establishment of the Penske Porsche dealership as part of PCNA's system of
distribution is unfair, inequitable, unreasonably discriminatory, and not supportable by reason and
good cause after considering the equities of the affected motor vehicle dealer, specifically
Champion.
135.
Florida Statute §320.69 7 provides that any person who has suffered pecuniary loss
or who has been otherwise adversely affe cted because of a violation by a licensee of ss. 320.60320.70, notwithstanding the existence of any other remedies under ss. 320.60-320.70, has a cause
of action against the licensee for damages and may recover damages therefore in any court o f
competent jurisdiction i n a n amount equal to 3 times the pecuniary loss, together with costs and a
reasonable attorney's fee assessed by the court.
136.
Champion has suffered and will suffer pecuniary loss and has been or will be
otherwise adversely a ffe cted because of PCNA's violation o fss.320.60-320. 70, including Florida
Statute §320.64(18).
WHER E F OR E, Champion hereby requests this Court award Champion recovery of its
damages arising from PCNA's violation o fFlorida Statute §320.64(18) and that such damages be
trebled and Champion be awarded its costs and attorney 's fees as provided in Florida Statute
§320.697.
30
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---------
Regarding Count V, Plaintiff demands a trial by jury on all issues triable by a jury.
COUNT VI
Interference with Business Relationship
(New Point)
·
137.
The allegations of paragraphs 1 through 78 are realleged as if fully set forth herein.
1 38.
This is an action for tortious interference w ith a business relationship.
1 39.
Champion and PCNA have an existing business relationship through and arising
out of the Champion Franchise Agreement.
140.
PCNA is aware of this fr anchise relationship, including Champion's significant
investment in facilities, personnel, inventory, advertising and m arketing and other . assets and the
financial obligations which PCNA has required of Champion pursuant to the Champion Fr anchise
Agreement.
141.
PCNA has announced its intention to enter into a Porsche fr anchise agreement with
Penske to operate a Porsche franchise dealership at the Penske Location.
142.
By entering into a Porsche franchise agreement with Penske for the establishment
of a Porsche dealership at the Penske Location, PCNA commits an intentional and unjustified
interference with PCNA's relationship with Champion.
143.
The demographic d at a and other d at a and factors which identify and evidence the
customer demand for Porsche vehicles do not identify enough sales opportunities in and around
the new proposed Porsche dealership to fully support the new Porsche dealership at the Penske
Location.
A new Porsche dealership will not capture sufficient lost Porsche vehicle sales
opportunities to fully financially support the dealership and therefore will seek to t ake Porsche
vehicle s ales and service historically c aptured by Champion in and around Champion's PAR. T his
will significantly damage Champion.
· 31
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144 .
Fmiher, Champion has sold all of the new Porsche vehicles distributed to it for sale
to consumers by PCNA over the last two years and has requested more vehicles, however PCNA
has stated that it has no additional vehicles to distribute to Champion. With this shortage of new
Porsche vehicles, the addition of an additional dealership would exacerbate this problem.
PCNA is discontented and disgruntled by Champion's refusal to implement the
145.
PCNA facility plan and is dissatisfied with Champion's facility renovation plan.
Upon information and belief, Penske will build a facility as demanded by P CNA
146.
and PCNA does not give consideration to the damage the additional Porsche dealership at t he
Penske Location which will cause Champion.
147.
PCNA evaluates Champion's compliance with its franchise agreement obligations
in several ways, including evaluating Champion's sales performance. By adding an additional
west Broward Porsche dealership which will seek to capture Porsche sales historically captured by
Champion in and around its PAR, PCNA has diminished and/or reduced Champion's ability to
comply with the Champiori Franchise Agreement and thereb y adversely i nterfered with
Champion's business relationship with P CNA. PCNA's interference is intended to accomplish
PCNA's ulterior motive of eliminating Champion and establishing Penske as the Broward County
Porsche dealer.
148.
PCNA 's interference with the Champion Franchise Agreement is for improper
purpose and in bad faith.
149.
PCNA 's actions will severely damage Champion.
WHER EFOR E , Champion demands judgment for damages arising out of PCNA's
intentional i nterference with Champion's business relationship.
Regarding Count VI, Plaintiff demands a trial by jury on all issues triable by a jury.
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COUNT VII
Violation of Florida Deceptive and Unfair Trade Practices Act
(New Point)
1 50.
The allegations of paragraphs 1 through 78 are realleged as if fully set forth herein.
1 51.
Since 1 988, Champion, pursuant to the requirements of the Champion Franchise
Agreement, has invested tens of millions of dollars to establish the Champion Porsche business,
including, serving the Broward County community in both sales and service for Porsche motor
vehicles and develop goodwill for the Champion business and for Porsche motor vehicles, all while
complying with the significant demands of PCNA.
152.
Champion is a "consumer" within the meaning of Florida Statutes §50 1 .203(7).
153.
PCNA intends to add the Penske Porsche dealership in west Broward County at the
Penske Location.
154.
The luxury automotive market and vehicle demand in Broward· County and
surrounding areas cannot financially support the addition of another Porsche dealership. The
demographic data and other data and factors which identify and evidence the customer demand for
Porsche vehicles do not identify enou gh Porsche sales opportunities in and around the Penske
Location to support the new Porsche dealership. The new proposed Porsche dealership will not
capture suf� cient lost Porsche sales opportunity to fully financially succeed and therefore a new
dealership will seek to take sales and service historically captured by Champion in and around
Champion's PAR. This will significantly damage Champion.
1 55.
PCNA has the motor vehicle sales and registration data for the Broward automotive
market and surrounding areas and knows or reasonably should know that by adding the additional
Porsche dealership in West Broward, such action will significantly damage Champion.
156.
PCNA's actions · are unconscionable acts and/or practices, and unfair acts or
33
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practices in the conduct of the automotive trade or commerce, including, but not limited to : (1)
requiring facility upgrades , costing millions of dollars to the sales and service facilities of
Champion with PCNA 's stated purpose of improving Champion's ability to represent Porsche
throughout Champion 's PAR and surrounding area, then a dding a new Porsche dealership in the
area; (2) Champion consistently requested additional new Porsche vehicles from PCNA to sell to
consumers to capture the Porsche sales opportunity in Broward County and the surrounding market
areas, but PCNA advised that PCNA did not have additional new Porsche vehicles to sell to
Champion, however PCNA now seeks to add another new Porsche franchised dealer in west
Broward County and supply this new dealership with new Porsche motor vehicle inventory which
PCNA alleges will have a planning volume of approximately 900 new Porsche vehicles in calendar
year 2015; (3) PCNA knows or should know that the current data regarding Porsche sales
opportunity in Broward County and the surrounding areas do not support the establishment of a
new full sized Porsche dealership in west Broward County, however PCNA intends to award and
establish such dealership which PCNA knows or should know will significantly damage
C hampion's business; (4) PCNA has asserted . improper and unmeritorious claims against
C hampion arising from the posting of the three presentation slides on a third party company
website to pursue t he extreme sanction of terminating Champion's franchise agreement with the
ulterior motive to either terminate or drive Champion out of business so Penske can be the sole
Broward County Porsche dealer.
157.
Pursuant to Florida Statute §501 .211(1) C hampion, as an aggrieved party by
PCNA's violation of Florida Statute §501.204, brings this action to obtain a declaratory judgment
that PCNA's act of adding an additional Porsche dealership in West Broward violates Florida
Statute §501.204 and Champion requests that this Court enjoins PCNA w ho has violated, is
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violating and/or is otherwise likely to violate this statute from adding an additional Forsche
franchised dealer in west Broward County and granting Penske franchise rights to operate at the
Fenske Location.
158 .
Fmiher, in the event that FCNA is permitted and/or does in fact grant Fenske
franchise rights and enters into a Forsche franchise agreement permitting Fenske to open a new
Forsche motor vehicle dealership at the Fenske Location, Champion will incur actual damages and
accordingly Champion seeks recovery of such damages from this Court .
WHEREFORE, Champion requests that pursuant to Florida Statute §50 1.2 1 1 that this
Court enjoin FCNA from adding an a dditional Porsche franchised dealer in west Browar d County
and from awarding Penske franchise rights to operate a new Porsche franchised motor vehicle
dealership at the Penske Location and, if an injunction is not entered, then Plaintiff requests that
this Court award Champion its damages arising from and suffered as a result of PCNA awarding
Penske franchise rights and/or entering into a Porsche franchise agreement with Fenske to
thereafter operate a new Porsche franchised motor vehicle dealership at the Penske Location.
Further, Champion requests that this Court grant Champion recovery of its reasonable attorneys'
fees and costs pursuant to Florida Statute §50 1.2 105.
Regarding Count VII, Plaintiff demands a trial by jury on all issues triable by a jury.
COUNT VIII
Breach of Contract
159.
The allegations of paragraphs 1 through 78 and 154- 155 are realleged as if fully set
forth herein.
160.
This action is for breach of contract.
16 1.
The Champion Franchise Agreement provi des that PCNA shall refrain from
conduct \Vl-'Jch ma;' be detrimental to DEP.LER.
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1 62.
The actions by PCNA have breached the Champion Franchise Agreement,
including adding an additional Broward County Porsche dealer when such action will damage
Champion. (See paragraphs 77, 1 54- 1 55 , supra)
1 63.
Further, by adding an additional Porsche franchised motor vehicle dealer in the
I
Broward County market at the Fenske Location, PCNA prevents or hinders the performance of
Champion or the acts of Champion required to be performed under the contract, and/or prevents
the discharge of Champion's contractual duties.
1 64.
The new Porsche dealership will not capture sufficient Porsche lost opportunities
to fully financially succeed and therefore will seek to take sales and service historically captured
by Champion in and around Champion's PAR.
165.
PCNA's actions are a breach of the Champion Franchise Agreement, including,
but not limited to preventing or hindering Champion's performance, including certain sales
performance and service performance.
166.
The breaches by PCNA will cause damages to Champion.
WHEREFORE, Champion requests that this Court enter judgment in favor of Champion
and against PCNA for breach of the Champion Franchise Agreement and award Champion its
damages arising from such breach.
Regarding Count VIII, Plaintiff demands a trial by jury on all issues triable by a jury.
COUNT IX
Breach of Implied Covenant of Good Faith and Fair Dealing
167.
The allegations of paragraphs 1 through 78, 154 through 155 and 160 through 166
are realleged as if fully set forth herein.
168.
This is an action for breach of an implied covenant of good faith and fair dealing.
1 69.
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Case 0:14-cv-60413-DTKH Document 1-2 Entered on FLSD Docket 02/19/2014 Page 39 of 40
franchised dealer at 4645 Volunteer Road, Davie, (Broward County) Florida 33330, the Penske
Location. The demographic data and other data and factors which identify and evidence the
customer demand for Porsche vehicles do not identify enough sales opportunities in and around
the proposed new Penske Porsche dealership at the Penske Location to support a new Porsche
dealership. A new Porsche dealership will not capture sufficient lost Porsche sales oppo1iunities
to fully financially support the dealership and therefore will seek to take Porsche vehicle sales
historically captured by Champion in and around Champion's PAR. This will significantly
damage Champion.
1 70.
Further, Champion has sold all of the new Porsche vehicles distributed to it for sale
to consumers by PCNA over the last two years and has requested more vehicles, however PCNA
has stated that it has no additional vehicles to distribute to Champion. With this shortage of new
Porsche vehicles, the addition of an additional dealership would exacerbate this problem.
171.
The Champion Franchise Agreement provides that PCNA shall refrain from
conduct which may be detrimental to Champion.
172.
Although the Champion Franchise Agreement provides PCNA limited rights to add
additional new Porsche franchised dealers, PCNA may not do so when the location of the new
dealership would be detrimental to Champion.
173 .
As set forth in Count VIII, PCNA has breached the contract by perfonning conduct
which is detrimental to Champion.
174.
The implied covenant of good faith and fair dealing is intended to protect the
reasonable expectations of the contracting parties in light of their express agreement. In light of
the breach of the express agreement to refraining from conduct which is detrimental to Chan1pion,
PCNA has breached the implied covenant of good faith and fair dealing. PCNA has breached the
37
Case 0:14-cv-60413-DTKH Document 1-2 Entered on FLSD Docket 02/19/2014 Page 40 of 40
reasonable expectation that PCNA would not add an additional dealership in detriment to
Champion and which would damage Champion .
175.
Champion has been damaged by PCNNs breach of the implied covenant of good
faith and fair dealing . Champion's damages were in the reasonable contemplation of PCNA.
WHERE FORE, Champion requests that this Court award it damages resulting from
P CNA's breach of the covenant of good faith and fair dealing.
Regarding Count VIX, Plaintiff demands a trial by jury on all issues triable by a jury.
Respectfully submitted.
A. E D WARD QUINT ON, III
( Fla. Bar No . 464074)
KENNETH L. PARETTI
( Fla. Bar No. 779301)
QUINTON & PARETTI, P.A.
Attorneys for Plaintiffs
80 S.W. E ighth Street, Suite 2150
M iami, Florida 33130
P H : (305) 358-2727
FAX: (305) 358-0779
egu inton@guintonparetti.com
kparetti@guintonparetti.com
R O Y A. DIAZ
(Fla. Bar No . 767700)
SHD LE GAL GRO U P, P.A.
P.O. Box 11438
Ft. Lauderdale, Florida 333 39-1438
P H: (954) 564-2050
FAX: (954) 564-9252
rdiaz@shdlegalgroup.com
answers@shdlegalgroup.com
Attorneys for Copans Motors, Inc.
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