UNITED STATES DISTRICT COURT SOUTHERN ... - Nymag

Case 1:09-cv-21893-WMH Document 16 Entered on FLSD Docket 07/31/2009 Page 21 of 24
Servs. Agency, 2008 WL 4193046 *5 (N.D. Cal. 2008) citing 5 Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 1224 (2d ed.1990). Thus, in order to satisfy Rule 8,
allegations based on “information and belief” must be accompanied by a statement of the facts
upon which the belief is grounded. Prince v. Madison Square Garden, 427 F. Supp. 2d 372, 385
(S.D.N.Y. 2006).
The core factual allegations of Counts X and XI for Unfair Competition by Corporate
Espionage and Civil Trespass are that an unknown individual entered Plaintiffs’ Miami Beach
restaurant uninvited, asked for Plaintiffs’ executive chef by name, and was identified by
Plaintiffs’ chef as an acquaintance of over forty (40) years. (Compl. 79-81.) Based on those
unremarkable factual allegations, Plaintiffs then leap to the conclusion that “upon information
and belief”, this individual was an agent or apparent agent of Philippe engaged in “corporate
espionage surveillance” in a nefarious attempt to steal Plaintiffs’ alleged trade secrets and
confidential information. (Compl. 83.) However, nothing in Plaintiffs’ factual allegations
suggests such a conclusion. Because Plaintiffs have not alleged a factual basis supporting their
contention that this individual was working on behalf of Philippe for improper purposes, Counts
X and XI must be dismissed.
The proposition that Philippe, who has operated a successful restaurant business around
the country for nearly four years, sent a “covert” spy, who readily identified himself as such, to
Plaintiffs’ place of business for purposes of unfair competition, defies all logic and is simply
false. As Plaintiffs are well aware, the individual who came to Plaintiffs’ restaurant was a
gentleman by the name of Man Choy (“Peter”). Peter went to the restaurant to say hello to his
friend of over forty (40) years, Ng Jai Chung (“John”). A W Hotel Security Guard walked Peter
into the restaurant. He did not trespass. When John recognized his old friend Peter, John was
happy to see him. Peter and John spoke for a few minutes, exchanged cell phone numbers and
promised to continue to keep in touch. After the conversation, Peter walked away from the
restaurant. He was in no way escorted out of the restaurant as alleged.
Peter and John met each other in Hong Kong in the 1960s. They remained friends when
they were both working in London in the 1970s and 1980s. Even when Peter moved to the
United States in the 1980s, Peter and John continued their friendship and kept in touch over the
telephone. Approximately five years ago, John traveled from London to San Diego to pay respect
to Peter’s brother who was dying of a terminal illness. Peter’s visit to Plaintiffs’ restaurant was
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RICHMAN GREER, P.A.
Miami • West Palm Beach