Garfinkel v. Romain, Et Al, M.D. Fla. Case No. 08-CV-01975-MSS-GJK - Am. Complaint

Case 6:08-cv-01975-MSS-GJK Document 30 Filed 08/11/2009 Page 1 of 17
IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ALAN B. GARFINKEL, P.A., a Florida

professional service corporation d/b/a
GARFINKEL TRIAL GROUP,
Plaintiff,
v. CASE NO. 6:08-CV-01975-MSS-GJK
KENNETH ROMAIN, JEFF DOBBINS,

IVAN BROWNER, STEPHEN BROWNER,
and TSSA STORM SAFE, INC.,
Defendants.
_____________________________________/
AMENDED COMPLAINT
Plaintiff, Alan B. Garfinkel, P.A., a Florida professional service corporation, d/b/a
Garfinkel Trial Group (“GTG”), sues Defendants, Kenneth Romain, Jeff Dobbins, Ivan
Browner, Stephen Browner, and TSSA Storm Safe, Inc., and alleges:
PARTIES, JURISDICTION, AND VENUE
1. Plaintiff, GTG, is a Florida corporation with its principal place of business
in Orange County, Florida.
2. Defendant Kenneth Romain (“Romain”) is a resident of Palm Beach
County, Florida.
3. Defendant Jeff Dobbins (“Dobbins”) is a resident of Palm Beach County,
Florida, and is an owner, officer, employee, and/or other agent of TSSA Storm Safe, Inc.
4. Defendant Ivan Browner (“Ivan Browner”) is a resident of Palm Beach
County, Florida, and is an owner, officer, employee, and/or other agent of TSSA Storm
Safe, Inc.
5. Defendant Stephen Browner (“Stephen Browner”) is a resident of Palm
Beach County, Florida, and is an owner, officer, employee, and/or other agent of TSSA
Storm Safe, Inc.
6. Defendant TSSA Storm Safe, Inc. (“TSSA”) is a Florida corporation with
its principal place of business in Palm Beach County, Florida.
7. Venue is properly before this Court under §§ 47.011 and 47.051, Florida
Statutes, because the cause of action arose in Orange County, Florida, and Defendants
maintain or do business in Orange County, Florida.
GENERAL ALLEGATIONS
Romain Provides Consulting Services to the Garfinkel Trial Group
8. GTG is a law firm that, among other things, represents thousands of
property owners in disputes with insurance companies who failed to pay for property
damage resulting from the various hurricanes that swept across the State of Florida in the
last few years.
9. As part of its representation of clients who suffer catastrophic property
damages, GTG retains appraisers and other experts to evaluate the extent of the damages
and the costs of any necessary repairs.
10. In or about March of 2007, Romain began providing consulting services to
GTG through various companies that either employed or were engaged by Romain.
2
11. Romain is one of many consultants that GTG has used (and uses) for the
valuation of property damage claims. Romain’s job was to complete the initial valuations
and coordinate the quotes of roofers and other vendors that were necessary to initially
evaluate the costs of remedial repairs.
12. One of the sub-vendors that Romain retained was TSSA.
Romain does business through Hunter R Contracting
13. In the fall of 2007, Romain, in an effort to ingratiate himself with GTG
and to set himself up as the preferred consultant, advised GTG that Romain’s (now
former) employer was overbilling for services provided to GTG. As a result of Romain’s
allegations, GTG discharged Romain’s previous employer.
14. After his former employer was discharged, Romain provided services to
GTG in his individual capacity and not through any particular company. In November of
2007, Romain formed Hunter R Contracting, LLC (“HRC”) as a vehicle through which
he could continue to provide services to GTG to assist in the representation of its clients.
15. Unknown to GTG, Romain and his wife had secretly previously filed to do
business the fictitious name “Hunter R Contracting” on June 7, 2007, over five months
prior to forming HRC. Romain and his wife, Halle Burk, were listed as the owners of
“Hunter R Contracting.” The creation of the LLC entity named “Hunter R Contracting,
LLC,” with a substantially similar and confusing name as the fictitious name “Hunter R
Contracting” used by Romain, was apparently the culmination of a long-standing plan
formed by Romain.
3
Romain Submits Fraudulent Invoices
16. On March 19, 2008, Romain submitted invoices purportedly on behalf of
“Hunter R Contracting” in the total amount of approximately $2.6 million to GTG. True
and accurate copies of the invoices are attached as Exhibit “1.”
17. These invoices were a complete surprise to GTG because it had been
paying HRC’s bills as they were submitted, and GTG was unaware of any work that
would justify the submission of such ridiculously large invoices. At around the same
time, Romain called GTG and demanded the immediate payment of approximately
$100,000.00. Romain repeatedly harassed and threatened Mr. Garfinkel and other
members of GTG.
18. GTG began investigating the invoices submitted by Romain. It concluded
that the bills submitted by Romain on March 19th could not be substantiated. The bills
were not only fraudulent, but completely unjustified and utterly absurd.
Romain and Hunter R Contracting are Terminated
19. Upon discovering the foregoing financial improprieties, Mr. Garfinkel
confronted Romain, who admitted he had engaged in financial misconduct. Mr.
Garfinkel, therefore, determined that the services of Romain and HRC should be
terminated.
20. Unfortunately, Romain essentially held GTG hostage because he had
possession of the only copies of documents, reports, and photographs related to work that
had cost GTG hundreds of thousands of dollars, work which GTG needed to advance the
interests of its clients.
4
21. In an effort to obtain those materials and to avoid prejudice to its clients,
GTG agreed to pay HRC an agreed balance for the work that had been performed. In
exchange, Romain agreed to produce the materials in his possession. Romain also
executed a release on behalf of himself and HRC in which all claims against GTG were
released.
22. Romain/HRC were terminated as consultants to GTG in the spring of
2008.
Romain Engages in Kickback Scheme
23. After the consulting services of Romain/HRC were terminated, GTG
discovered that Romain, purporting to act through HRC, had engaged in a scheme to
defraud GTG and its clients.
24. Among other things, GTG discovered that Romain had engaged in a
scheme involving “kickbacks” from sub-vendors who Romain arranged to provide
services to GTG, including, but not limited to, TSSA.
25. Several of the vendors, including TSSA, inflated their invoices to GTG so
they could “kickback” monies to Romain. All of the participants in this scheme were
participants in an unlawful conspiracy and engaged in a pattern of ongoing activity
designed to steal from GTG and, potentially, its clients.
26. As part of the scheme and in order to conceal his theft, Romain also had
sub-vendors, including TSSA, sign contracts in which they agreed that they would not
have direct contact with GTG. In the event of such contact, the agreements provided that
the sub-vendors would be subject to a one million dollar penalty.
5
TSSA Confesses to Involvement in Fraudulent Invoice Scheme
27. In June of 2008, the principals of TSSA, Jeff Dobbins, Ivan Browner, and
Steven Browner (the “TSSA Principals”), visited the offices of GTG in Orange County,
Florida.
28. At the June, 2008 meeting, the TSSA Principals explained that they had
done work as a sub-vendor under the supervision of Ken Romain for the benefit of some
of GTG’s clients.
29. Dobbins, President of TSSA, represented that he and the other TSSA
Principals wanted a meeting with GTG because they were threatened by Romain and
wanted to bring certain matters to GTG’s attention.
30. During the course of the meeting, the TSSA Principals revealed that TSSA
had paid money to Romain in return for Romain hiring TSSA to do work for the law firm
in providing assistance to its clients.
31. Also, during the June, 2008 meeting, Dobbins revealed that TSSA had
purposefully overbilled GTG for its services and paid Romain the difference between the
amount it was actually owed and the amount overbilled. Dobbins stated that Romain had
threatened reprisals against TSSA if TSSA did not pay him more money for his referrals.
32. Dobbins explained that TSSA prepared draft invoices for work it did for
the clients of GTG. The draft invoices were then submitted to Romain, who reviewed the
invoices and increased them by a percentage that varied. Final invoices, which included
the inflated amounts directed by Romain, were then submitted by TSSA to GTG. The
difference between the original invoice and the inflated invoices was remitted, or “kicked
6
back,” to Romain after the invoices were paid by GTG. This process is hereinafter
referred to as “the TSSA Fraudulent Invoice Scheme.”
33. In July of 2008, TSSA produced the spreadsheet attached as Exhibit “2.”
The spreadsheet memorializes the TSSA Fraudulent Invoice Scheme. Dobbins explained
that TSSA would submit draft invoices to Romain listing services provided under their
standard $110.00 per unit and $150.00 per unit pricing. This figure is represented in
YELLOW on the spreadsheet.
34. As noted above, Ken Romain reviewed the draft invoices and instructed
TSSA to increase the amount on the invoices by increasing the unit costs for services
rendered. The invoices actually submitted to the law firm are highlighted on the
spreadsheet in BLUE.
35. The “DELTA,” highlighted in RED on the spreadsheet, is the amount of
money paid by TSSA to Romain/Hunter R in “kickbacks.” The amount of the
“kickbacks” was equal to the difference between the actual cost of TSSA’s services and
the inflated amount billed.
36. The invoices attached hereto as Composite Exhibit “3” were submitted
by TSSA to GTG at its offices in Orange county, Florida.
37. Each of the invoices included within Composite Exhibit “3” were fully
paid by GTG and those payments were made in Orange County, Florida.
38. Each of the invoices included within Composite Exhibit “3” was inflated.
When payment for the invoices was received, the inflated portion of each invoice was
remitted, or “kicked back,” to Romain through HRC.
7
39. The law firm paid TSSA $354,249.00 based on invoices TSSA submitted.
Of the funds the law firm paid to TSSA, $90,910.00 was “kicked back” by TSSA to
Romain through HRC.
Romain’s Use of Threats and Coercion To Extract Additional Money from GTG
40. Despite receiving payment and executing a release of all claims, Romain
continued to demand additional money from Mr. Garfinkel and GTG, and began
engaging in a series of threats and concerted action intended to damage GTG’s and Mr.
Garfinkel’s reputation and business relationships in order to extract addition monies from
Plaintiff .
41. In June, July, and August of 2008, Romain made several demands for
money from Mr. Garfinkel and GTG. Mr. Romain tried to extort a payment of “$1
million in small bills” and threatened to file a lawsuit, Bar grievances, and criminal
charges if he were not paid.
42. Romain stated on the phone and in voice mail recordings (that have been
preserved) that he would not stop his efforts to get money. As one example, in a voice
mail left on Mr. Garfinkel’s cell phone, Romain stated, “I’ll put my ass in jail for two
years to watch you rot….You’re out, you’re done, your f***ed, you little f****ing f***
stick faggot.”
Romain Tortiously Interferes with GTG’s Advantageous Business Relationships
43. On July 22, 2008, a lawyer representing Romain, Alex P. Rosenthal,
contacted GTG and claimed that monies “well in excess of $3 million” were owed by the
8
law firm to HRC. Despite repeated requests, Rosenthal did not produce any
documentation to support his allegations.
44. In August of 2008, Rosenthal spoke with Mr. Garfinkel and demanded
payment of one million dollars to Romain. When asked why Mr. Garfinkel allegedly
owed the debt, Rosenthal stated and repeated the ominous phrase, “Words once spoken,
even if untrue, can never be unspoken.”
45. On August 26, 2008, Rosenthal acted on his threat and filed a lawsuit (on
behalf of Romain) against Mr. Garfinkel and others. A true and correct copy of the
complaint is attached hereto as Exhibit “4.”
46. The Complaint is replete with allegations of misconduct and purported
violations of the Rules Regulating The Florida Bar, allegations which are untrue,
immaterial, and obviously designed to harass, embarrass, intimidate, extort, and destroy
the reputations of the GTG and Mr. Garfinkel.
47. Defendants filed motions to dismiss the lawsuit and served Rosenthal with
demands, under § 57.105, Florida Statutes, that he withdraw the Complaint.
48. On October 17, 2008, before the motions to dismiss could be heard,
Rosenthal filed a voluntary Notice of Dismissal of the Romain lawsuit.
49. Before the lawsuit was dismissed, however, Romain and others had
distributed copies of his Complaint, to clients of GTG in an effort to disrupt GTG’s
business and extort payment from GTG.
9
TSSA Tortiously Interferes with the GTG’s Advantageous Business Relationships
50. Despite its confession of tortious and criminal behavior, TSSA also had
the gall to file a lawsuit against GTG and persons associated with it. A true and correct
copy of the complaint filed by TSSA is attached hereto as Exhibit “5.” The foundation
of the lawsuit is apparently TSSA’s contention that it has been “defamed” by the
publication of information concerning the theft to which it confessed.
51. The attorney for TSSA in the lawsuit is Scott A. Mager (“Mager”). Mager
is also a defendant in a lawsuit brought by GTG based upon Mager’s disparagement of
GTG and his recruitment of potential plaintiffs to sue GTG.
52. The sole purpose of the TSSA lawsuit and threats of Bar grievances if the
claims were not paid has been to extort the payment of money from GTG.
53. Since its criminal acts of conspiracy and theft were discovered, TSSA has,
surprisingly, continued to try to collect money from GTG.
54. In an effort to extort payment, TSSA threatened Bar grievances, legal
action, and the disruption of GTG’s business.
55. TSSA filed the Complaint attached hereto as Exhibit “5” as part of an
ongoing effort to extort monies that are not owed. Even assuming arguendo that TSSA
might have a legitimate argument against someone, there was no legitimate reason to sue
the attorney and various employees of GTG in the action, which proves the ill motives of
TSSA.
10
56. In addition to filing the frivolous lawsuit, TSSA and Dobbins have tried to
undermine the business of GTG and its relationships with its clients by making false
representations about GTG and otherwise trying to cast the firm in a bad light.
57. Dobbins/TSSA disparaged GTG by distributing -- to GTG’s clients and its
employees -- the now dismissed complaint that Romain filed, along with the frivolous
complaint filed by TSSA, advising the clients and employees that they “should know
what’s really going on.” All of this is part of a coordinated and calculated smear
campaign pursued by Dobbins/TSSA, with the acquiescence and consent of Romain and
the Browners.
58. Dobbins/TSSA issued letters to many clients of GTG in which
Dobbins/TSSA falsely stated: (a) that GTG failed to pay TSSA for services it performed
(TSSA neglected to mention that it stole monies from GTG); and (b) that it was forced to
file a “charging lien” against the client’s property (TSSA neglected to mention that it
does not have legally sufficient grounds to file a lien).
59. Dobbins/TSSA told clients of GTG that the law firm “is also well aware
that we may be deposed by defendants or forced to disclose various information as a
result of their irresponsibility.” This statement is obviously designed to imply that GTG
has engaged in some sort of criminal acts and that TSSA has knowledge of the acts. The
statement is defamatory and tortious and proves the conspiracy between Romain and
TSSA to extort money from GTG is ongoing. The letters mailed by TSSA/Dobbins to
GTG clients in which the foregoing statement was are attached hereto as Composite
Exhibit “6.”
11
Fulfillment of Conditions Precedent
60. All conditions precedent to the filing of this action have occurred, been
performed, or have been waived.
COUNT I
Fraud (All Defendants)
61. GTG incorporates by reference the allegations set forth in paragraphs 1
through 39 and 60 as if those allegations were fully repeated herein.
62. This is an action against all the Defendants for their joint, collective, and
individual fraudulent misrepresentations.
63. The Defendants intentionally made, or caused to be made, material
misrepresentations and false statements, including the false statements made in the
invoices used in the Kickback and Fraudulent Invoice Schemes described above.
64. Defendants intentionally and falsely stated that GTG owed TSSA the
monies set forth on the invoices attached as Exhibit 3, when in fact those monies were
not owed.
65. The above statements were false and Defendants knew they were false
when they made the statements.
66. Defendants intended for GTG to rely on the false statements.
67. GTG relied on the false statements and its reliance was reasonable.
68. As a direct and proximate result of the Defendants’ wrongful actions,
GTG has sustained actual damages and will continue to sustain such damages in the
future.
12
WHEREFORE, GTG demands judgment against all of the Defendants, jointly and
severally, and in its favor for:
A. Compensatory and other damages contemplated by and available under
applicable law;
B. Punitive Damages; and
C. Such other relief as the Court deems just.
COUNT II
Conversion (All Defendants)
70. This is an action against the Defendants for their joint, collective, and
independent actions to convert monies belonging to GTG.
71. The Defendants, through the Kickback and Fraudulent Invoice Schemes
described above, knowingly and intentionally stole, converted, and/or otherwise
misappropriated for their own benefit and/or the benefit of others, without the authority to
do so, money and other property that belonged to GTG.
applicable law;
13
COUNT III
Civil Conspiracy (All Defendants)
73. This is an action against the Defendants for civil conspiracy.
74. Beginning no later than November, 2007, and continuing through the
present, Defendants combined, conspired, confederated and agreed to enter into a scheme
to defraud GTG and to steal monies from it.
75. Several overt acts were carried out in furtherance of the conspiracy,
including the establishment of Hunter R. Contracting, the Kickback and Fraudulent
Invoices Schemes described above, and the resulting theft of funds from GTG.
76. Defendants performed the acts alleged herein in furtherance of the
common plan or design for the conspiracy with knowledge of the injury and damage it
would cause to GTG and with the intent to cause such injuries or with reckless disregard
for the consequences.
77. As a direct and proximate result of the conspiracy as alleged herein, GTG
has been injured and damaged, and Defendants are jointly and severally liable for such
injuries and damages.
applicable law;
14
COUNT IV
Intentional Inference with Business (All Defendants)
through 12 and 40 through 60 as if those allegations were fully repeated herein.
79. This is an action against the Defendants for their joint, collective, and
individual actions to intentionally and/or tortiously interfere with the business of GTG.
80. At all material times, GTG had ongoing and prospective business
opportunities with many clients that it represented and for whom Defendants were
retained to provide certain services.
81. The Defendants possessed actual knowledge of GTG’s client relationships
and business opportunities.
82. The Defendants acted deliberately and/or negligently to interfere with
GTG’s business opportunities and client relationships, by threatening to file, and then
actually filing false and frivolous bar grievances and lawsuits, and then disseminating
those grievances and lawsuits to third parties for the sole and improper purpose of
interfering with and damaging GTG’s and Mr. Garfinkel’s reputation and advantageous
business relationships.
83. The Defendants knew or should have known that the acts complained of
were likely to result in the disruption of GTG’s business opportunities and client
relationships.
84. The Defendants’ misconduct, including the filing and dissemination to
non-parties of grievances and frivolous lawsuits, and general disparagement of GTG and
15
Mr. Garfinkel to their clients, did, in fact, disrupt GTG’s business opportunities and client
relationships.
applicable law;
DEMAND FOR TRIAL BY JURY
Plaintiff, GTG, demands trial by jury as to all issues so triable.
REQUEST FOR REMAND
Plaintiff, GTG, request this Court remand this action to the Circuit Court for 9th
Judicial Circuit in and for Orange County, Florida, where this action was originally
brought. The sole basis for removal to this Court was Plaintiff’s RICO claims which
have been dropped in this Amended Complaint. While this Court could in its discretion
retain jurisdiction over the remaining state claims, District Courts are “encouraged to
remand remaining state claims when all of the federal claims in a case have been
eliminated prior to trial.” Farrell v. G.M.A.C., 2008 WL 1766909 at *3 (M.D. Fla., April
15, 2008). Therefore, Plaintiff, GTG, requests the Court enter an Order remanding this
matter to the Circuit Court of the 9th Judicial Circuit, In and for Orange County, Florida.
16
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 10th day of August, 2009, I electronically filed
the foregoing with the Clerk of the Court by using the CM/ECF system, which will send
a notice of electronic filing to all counsel of record.
s/Tucker H. Byrd
Tucker H. Byrd
Florida Bar No. 381632
GREENBERG TRAURIG, P.A.
Attorneys for Plaintiff
450 South Orange Avenue, Suite 650
Orlando, Florida 32801
Telephone: (407) 420-1000
Facsimile: (407) 841-1295
Email: byrdt@gtlaw.com
ORL 297,206,976v3 110971.010400 08-07-09 17

Case 6:08-cv-01975-MSS-GJK Document 30-2 Filed 08/11/2009 Page 1 of 20

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Case 6:08-cv-01975-MSS-GJK Document 30 Filed 08/11/2009 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT

ALAN B. GARFINKEL, P.A., a Florida

v. CASE NO. 6:08-CV-01975-MSS-GJK

KENNETH ROMAIN, JEFF DOBBINS,

Plaintiff, Alan B. Garfinkel, P.A., a Florida professional service corporation, d/b/a

PARTIES, JURISDICTION, AND VENUE

1. Plaintiff, GTG, is a Florida corporation with its principal place of business

in Orange County, Florida.

2. Defendant Kenneth Romain (“Romain”) is a resident of Palm Beach

3. Defendant Jeff Dobbins (“Dobbins”) is a resident of Palm Beach County,

4. Defendant Ivan Browner (“Ivan Browner”) is a resident of Palm Beach

5. Defendant Stephen Browner (“Stephen Browner”) is a resident of Palm

Storm Safe, Inc.

6. Defendant TSSA Storm Safe, Inc. (“TSSA”) is a Florida corporation with

its principal place of business in Palm Beach County, Florida.

maintain or do business in Orange County, Florida.

Romain Provides Consulting Services to the Garfinkel Trial Group

8. GTG is a law firm that, among other things, represents thousands of

last few years.

9. As part of its representation of clients who suffer catastrophic property

and the costs of any necessary repairs.

10. In or about March of 2007, Romain began providing consulting services to

evaluate the costs of remedial repairs.

12. One of the sub-vendors that Romain retained was TSSA.

Romain does business through Hunter R Contracting

allegations, GTG discharged Romain’s previous employer.

Contracting” used by Romain, was apparently the culmination of a long-standing plan

Romain Submits Fraudulent Invoices

16. On March 19, 2008, Romain submitted invoices purportedly on behalf of

and accurate copies of the invoices are attached as Exhibit “1.”

18. GTG began investigating the invoices submitted by Romain. It concluded

Romain and Hunter R Contracting are Terminated

19. Upon discovering the foregoing financial improprieties, Mr. Garfinkel

confronted Romain, who admitted he had engaged in financial misconduct. Mr.

20. Unfortunately, Romain essentially held GTG hostage because he had

interests of its clients.

22. Romain/HRC were terminated as consultants to GTG in the spring of

Romain Engages in Kickback Scheme

23. After the consulting services of Romain/HRC were terminated, GTG

defraud GTG and its clients.

scheme involving “kickbacks” from sub-vendors who Romain arranged to provide

services to GTG, including, but not limited to, TSSA.

participants in an unlawful conspiracy and engaged in a pattern of ongoing activity

designed to steal from GTG and, potentially, its clients.

the sub-vendors would be subject to a one million dollar penalty.

TSSA Confesses to Involvement in Fraudulent Invoice Scheme

wanted to bring certain matters to GTG’s attention.

in providing assistance to its clients.

referred to as “the TSSA Fraudulent Invoice Scheme.”

YELLOW on the spreadsheet.

35. The “DELTA,” highlighted in RED on the spreadsheet, is the amount of

money paid by TSSA to Romain/Hunter R in “kickbacks.” The amount of the

the inflated amount billed.

by TSSA to GTG at its offices in Orange county, Florida.

remitted, or “kicked back,” to Romain through HRC.

Romain through HRC.

charges if he were not paid.

Romain Tortiously Interferes with GTG’s Advantageous Business Relationships

43. On July 22, 2008, a lawyer representing Romain, Alex P. Rosenthal,

documentation to support his allegations.

even if untrue, can never be unspoken.”

complaint is attached hereto as Exhibit “4.”