IN THE CIRCUIT COURT ELEVENTH JUDICIAL CIRCUIT, IN AND FOR MIAMI DADE COUNTY, FLORIDA LTA LOGISTICS, INC

A Florida Corporation, and LESTER TRIMINO Plaintiff GENERAL JURISDICTION DIVISION CASE NO.: 11-205#27 CA 21

ENRIQUE JOSE VARONA Defendant

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MOTION TO DISMISS DEFENDANT'S COUNTER CLAIM COMES NOW, the Plaintiffs, LTA LOGISTICS INC AND LESTER TRIMINO and hereby files this Motion to Dismiss the Defendant's Counterclaim and asjjrounds would state the following: COUNT I TORTIOUS INTERFERENCE WITH A BUSINESS RELATIONSHIP In the Defendant's Amended Counterclaim, the defendant purports to assert a claim of tortious interference with a business relationship. The defendant alleges mat the Plaintiffs Lester Trimino and LTA Logistics Inc. intentionally and unjustifiably interfered with the defendant's relationship with his new employer. The defendant further alleges that the Plaintiffs actions caused him to suffer irreparable economic loss and multiple damages. The defendant hi this cause of action has failed to state sufficient facts to support this claim against the Plaintiffs as required by Fla. R. Civ. P. 1.110(b). Instead, the Defendant's allegations are vague overbroad and conclusory. These types of conclusory statements devoid of any factual allegations, the defendant unlawfully harmed me is incapable of stating a claim. See Ashcroft v Iqbal U.S. 129 S. Ct 1937

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1949-50 (2009). For this reason the defendant's purported claim for tortious interference with a business relationship should be stricken. COUNT n TORTIOUS INTERFERENCE WITH BUSINESS ADVANTAGE The Defendant in this action purports to assert another action for tortious interference with a business advantage under the same alleged allegations as purportedly set forth in Count I of the Defendant's Amended Counterclaim. For the same reasons as set forth above and due to the fact that the allegations asserted are purportedly the same this should be stricken in its entirety. COUNT m CIVIL CONSPIRACY The defendant in this cause of action makes a feeble attempt to plead a count for civil conspiracy against the named Plaintiffs in this action and unnamed coconspirators. The defendant alleges that the defendants along with other non joined defendants "breached their fiduciary obligations to the defendant which is recognized by law". The defendant continues to assert that more than two persons conspired for the purposes of willfully and maliciously injuring his reputation. The defendant continues to make conclusory allegations including "the defendant's concerted actions were different from anything that could have been accomplished separately". That the defendant and others "are each a participant hi the wrongful act responsible as a joint tortfeasor for all damages ensuing from the wrong, irrespective of whether or not e was a direct actor and regardless of the degree of his activity". As a matter of law and pursuant to Florida Rules of Civil Procedure this is the specific type of conclusory pleadings that are incapable of stating a claim. Fla.R.Civ.P.1.110(b)(2). COUNT IV FRAUD

It is well established that Fraud must be pled with particularity. See Fla. R. Civ. P 1.120 (b). Here the Defendant merely sets forth a few vague generalizations stating that LTA and Trimino intentionally participated in a scheme to defraud him with a position with another company. The defendant goes on to state that the statements made Rule 9 (B) of the Federal Rules of Civil Procedure sets forth the specific parameters for pleading fraud. The complaint must set forth (1) precisely what statements were made in what documents or oral representation or what omissions were made. And (2) the time and the place of each such statement and the person responsible for making or in the case of omission not making same and the contents of such statement and the manner in which they misled the complainant and finally what did the defendant obtain as a consequence of the fraud. See Ziemba v Cascade International, Inc 256 F.3d 1194,1202 (11th Cir. 2001) (quoting Brooks v Blue Shield of Florida Inc., 116 F.3d 1364,1371 (11th Cir 1977). Accordingly the defendant hi this matter has failed to plead fraud with the specificity required by Rule 1.120 (b) and its Federal Counterpart 9 (b) and therefore Count IV should be dismissed in its entirety. COUNT V EMOTIONAL DISTRESS The Defendant hi this Amended Counterclaim purports to assert a cause of action for emotional distress. In an action for emotional distress the complainant must allege that the wrongdoer's conduct was intended to cause emotional distress; that the conduct was outrageous, beyond all bounds of decency, and utterly intolerable in a civilized community; the actions caused emotional distress and the emotional distress was severe. See Rivers v Dillards Department Store, Inc, 698 SO 2d 1328 (Fla 1st 1997) (emphasis added).. The standard for outrageous conduct is particularly high in Florida Patterson v

Downtown Med& Diagnostic Ctr Inc. 866 F. Supp 1379, 1383 (M.D. Fla. 1994) A complainant must assert sufficient facts to meet this extremely high standard. In the case before this Honorable Court the complainant has failed to meet this threshold and therefore this cause of action should be dismissed in its entirety. The Defendant in this matter seeks to recover attorney's fees and reasonable litigation costs in the prosecution of this matter. There is no basis in either statute or case law for the recovery of attorney's fees and litigation costs in this matter. See Codomo v Emanuel 91 So 2d 653, 655 (Fla.1956). Furthermore there is no basis either in statue or case law for the request for punitive damages. Given this fact these request must be stricken and dismissed in their entirety. WHEREFORE, The Plaintiffs LTA LOGISTICS INC., and LESTER TRMINO by and through undersigned counsel and respectfully requests that this Honorable Court enter an Order dismissing in its entirety the Defendant's Amended Counterclaim.

Respectfully Submitted

Scott Egleston EsquireFlorida Bar Number: $83425 12000 Biscayne Blvd., Suite 220 Miami, Florida 33 181 Phone: (305) 892-8088 Facsimile: (305) 892-9562

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true a correct copy of the foregoing answer was forwarded to Enrique Jose Varona 14823 SW 125th Court Miami Florida 33186 on this