motion to dismiss biotrackthc from shiner law group

IN THE CIRCUIT COURT OF THE 17TH

JUDICIAL CIRCUIT, IN AND FOR

BROWARD COUNTY, FLORIDA

BARRY GAINSBURG, PA, and

BARRY R. GAINSBURG,

Plaintiffs, CASE NO.: CACE16-021239

v.

GARY GREENWOOD, PATRICK VO,

BIO-TECH MEDICAL SOFTWARE, INC.,

DAVID I. SHINER, ESQ., STRATTON

SMILEY, ESQ., SHINER LAW GROUP,

P.A., and TERRANCE FERRARO,

Defendants.

_______________________________________/

DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT

COMES NOW, Defendants, GARY GREENWOOD, PATRICK VO, and BIO-TECH

MEDICAL SOFTWARE, INC.,1 by and through the undersigned counsel, and pursuant to the

Florida Rules of Civil Procedure, hereby file this Motion to Dismiss Plaintiffs, BARRY

GAINSBURG, PA and BARRY R. GAINSBURG’s2 Amended Complaint, and state as follows:

1. The above-captioned action was brought by the Plaintiffs against the Defendants alleging

civil conspiracy to create a conflict of interest that would result in Gainsburg’s termination

as counsel for Peter Holzworth3 in a lawsuit Defendant Bio-Tech Medical Software, Inc.4

1 Patrick Vo, Bio-Tech Medical Software, Inc., and Gary Greenwood, will be hereinafter collectively referred to as

“Defendants.”

2 Barry R. Gainsburg and Barry Gainsburg, PA will be hereinafter collectively referred to as “Plaintiff” and/or

“Gainsburg.” Gainsburg is admitted and authorized to practice law in the state of Florida. Gainsburg is also Bio-

Tech’s ex-general counsel and a very hostile and active litigant against Bio-Tech and the undersigned.

3 Peter Holzworth will be hereinafter referred to as “Holzworth.”

4 Bio-Tech Medical Software, Inc. will be hereinafter referred to as “Bio-Tech.”

Filing # 54206517 E-Filed 03/24/2017 04:59:21 PM

Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint

Barry R. Gainsburg, et al. v. Patrick Vo, et al.

Case No.: CACE 16021239

brought on September 30, 2016 (Case No. 16-018326), against Gainsburg and Holzworth

for civil conspiracy (“Holzworth Case”). Shiner Law Group P.A. and the undersigned,

filed the Holzworth Case on behalf of Bio-Tech. Patrick Vo, President and CEO of Bio-

Tech, verified the complaint on behalf of Bio-Tech.

2. The Holzworth Case alleged a civil conspiracy against Gainsburg and Holzworth

concerning Holzworth’s (an ex-employee of Bio-Tech) attempts to sell shares of his stock

in Bio-Tech to Gainsburg for an exorbitant price per share. This agreement between

Holzworth and Gainsburg was an effort to extort Bio-Tech into either exercising its “right

of first refusal” to purchase Holzworth’s stock in Bio-Tech at an exorbitant cost or allow

Gainsburg, an ex-Bio-Tech employee and hostile active litigant in separate cases against

Bio-Tech, to become a shareholder in Bio-Tech. As a point of information, at this time

there are at least five (5) cases involving Gainsburg (or his law firm) and one, or more, of

the Defendants in this case. Specifically, the cases are as follows:

a. Barry R. Gainsburg, et al. v. Bio-Tech Medical Software, Inc. d/b/a

BioTrackTHC, et al. (15-018959);

b. Bio-Tech Medical Software, Inc. d/b/a BioTrackTHC v. Barry R. Gainsburg, et al.

(16-018326);

c. Barry Gainsburg, PA, et al. v. David I. Shiner, Esq., et al (16-000487);

d. Barry R. Gainsburg v. Bio-Tech, et al. (16-021133); and

e. Barry R. Gainsburg, et al. v. Bio-Tech, et al. (16-021239).

3. On October 11, 2016, Bio-Tech, through the undersigned, sent correspondence to

Holzworth advising him that Bio-Tech was denying the sale of Holzworth’s stock in Bio-

Tech to Gainsburg. Bio-Tech advised Holzworth that Gainsburg was hostile to Bio-Tech

and an active litigant against Bio-Tech. Bio-Tech also advised Holzworth that Bio-Tech

filed a lawsuit against Holzworth.




4. On November 12, 2016, Holzworth sent an email directed to the Bio-Tech Board of

Directors giving his notice of retraction of any and all notices of intent to sell his shares of

stock in Bio-Tech to Gainsburg and his commitment to not initiate any stock transfer to

Gainsburg in the future (“Notice of Retraction”). Holzworth also indicated that he

terminated Gainsburg’s representation of himself and that Holzworth was also ending any

professional association with Gainsburg.

5. On November 14, 2016, pursuant to Holzworth’s Notice of Retraction, Bio-Tech filed its

Notice of Voluntary Dismissal Without Prejudice, dismissing Holzworth and Gainsburg –

the only two defendants in the Holzworth Case.5

6. On November 20, 2016, three days later, Gainsburg filed the instant lawsuit against

Defendants.

7. On January 26, 2017, Gainsburg took the deposition of his client, Holzworth, regarding a

variety of topics, some of which included the subject case. During Holzworth’s deposition,

Holzworth testified that he actually contacted Mr. Gary Greenwood first in an effort to

discuss the lawsuit and attempt to contact Mr. Patrick Vo, Bio-Tech’s CEO and President.

Holzworth then testified that a few days later he spoke with Mr. Gary Greenwood, who

told Holzworth that Bio-Tech would drop the lawsuit against him if he sent a Notice of

Retraction of his intent to sell shares of Bio-Tech stock to Gainsburg.

8. What’s more, Holzworth said the conversations he had with Mr. Vo and Mr. Greenwood

were very friendly and neither Mr. Vo nor Mr. Greenwood threatened him – contrary to

5 Gainsburg, showing his malicious intent toward Bio-Tech and the undersigned, filed with the Court in the Holzworth

Case a Motion for Attorney’s Fees pursuant to section 57.105, Florida Statutes, even though Bio-Tech dismissed the

case within the safe harbor period. It is important to note that Bio-Tech fully believes it had a viable cause of action

against Gainsburg and Holzworth, and that Bio-Tech dismissed Gainsburg only because Holzworth served his notice

of retraction to sell shares of Bio-Tech to Gainsburg.




Gainsburg’s allegations. Holzworth testified that he is still friends with Mr. Vo and Mr.

Greenwood and he would “go to bat for them” if necessary.

9. Finally, Holzworth read Paragraph 16 to Gainsburg’s original Complaint, which states,

“Furthermore, Mr. Greenwood spoke with Mr. Holzworth and threatened attorney fees,

endless litigation, mafia like tactics and other malicious and evil deeds would be done with

him unless he terminated his legal representation by BGPA in the Holzworth case.”

Holzworth then responded that the allegations were untrue and the conversation was

friendly, with Bio-Tech suggesting that it would drop the suit if Holzworth retracted his

Notice of Intent.

10. In complete disregard to Holzworth’s testimony, Gainsburg still continues to pursue this

case.

11. In fact, Plaintiff amended its Complaint, dropping Helix TCS, a party Plaintiff never

served, and adding Terrance Ferraro, yet another employee of Bio-Tech. To date, Plaintiff

has been unable to serve Terrance Ferraro.

12. For the reasons explained herein, Gainsburg’s Amended Complaint must be dismissed.

LEGAL STANDARD

13. “The function of a motion to dismiss a complaint is to raise as a question of law the

sufficiency of the facts alleged to state a cause of action.” Connolly v. Sebco, Inc., 89 So.

2d 482 (Fla. 1956). “In ruling on a motion to dismiss . . . the court must confine itself

strictly to the allegations within the four corners of the complaint.” Concerned Citizens v.

St. Johns River Water Mgmt. Dist., 622 So. 2d 520, 524 (Fla. 5th DCA 1993). Mere

statements of opinion or conclusions unsupported by specific facts will not suffice to avoid

dismissal. Brandon v. Cty. of Pinellas, 141 So. 2d 278 (Fla. 2d DCA 1962) (stating further




that mere statements of opinions or conclusions unsupported by specific facts are

insufficient to establish a right to relief).

14. Moreover, the Court will not be bound by bare allegations which are unsupported or

unsupportable. Other Place of Miami, Inc. v. City of Hialeah Gardens, 353 So. 2d 861

(Fla. 3d DCA 1978). “Florida’s pleading rule forces counsel to recognize the elements of

their cause of action and determine whether they have or can develop the facts necessary

to support it, which avoids a great deal of wasted expense to the litigants and unnecessary

judicial effort.” Cont’l Baking Co. v. Vincent, 634 So. 2d 242, 244 (Fla. 5th DCA 1994).

ARGUMENT

PLAINTIFF’S AMENDED COMPLAINT MUST BE DISMISSED FOR

FAILURE TO STATE A CAUSE OF ACTION

15. Gainsburg’s Amended Complaint must be dismissed for failure to state a cause of action.6

16. To state a cause of action for civil conspiracy, Gainsburg must allege the following

elements: “(1) an agreement between two or more parties; (2) to do an unlawful act or to

do a lawful act by unlawful means; (3) the doing of some overt act in pursuance of the

conspiracy; and (4) damage to plaintiff as a result of the acts done under the conspiracy.”

Philip Morris USA, Inc. v. Russo, 175 So. 3d 681, 686 n.9 (Fla. 2015).

17. The Plaintiffs have an obligation to set forth sufficient ultimate facts to make out the

elements of their claims. “To survive a motion to dismiss, a complaint must allege a prima

facie case. . . . Whether a prima facie case has been pled depends on the sufficiency of the

plaintiff’s allegations of fact, excluding the bare conclusions of the plaintiff.” Alvarez v. E

6 Pursuant to rule 1.140 of the Florida Rules of Civil Procedure, Defendants may move to dismiss a pleading for failure

to state a cause of action.




& A Produce Corp., 708 So. 2d 997, 999-1000 (Fla. 3d DCA 1998); see also Fla. R. Civ.

P. 1.110 Author’s Comment (“Under the Florida rule, vague and loose pleading will not be

permitted. The complaint must show a legal liability by stating the elements of a cause of

action; must plead factual matter sufficient to apprise the adversary of what he is called

upon to answer so that the court may determine the legal effect of the complaint.”); Deloitte

& Touche v. Gencor Indus., Inc., 929 So. 2d 678, 681 (Fla. 5th DCA 2006) (“As we wearily

continue to point out, Florida is a fact-pleading jurisdiction, not a notice-pleading

jurisdiction.”).

18. First, the Amended Complaint must be dismissed because Gainsburg utterly failed to allege

facts to show that each Defendant entered into an agreement for Mr. Gary Greenwood to

speak to a represented party to try to create a conflict of interest. What’s more, Gainsburg

never alleges in his Amended Complaint that the Defendants entered into any agreement.

In fact, in Paragraph 43, Gainsburg alleges that “Defendant Shiner Law Group used

Defendant BioTrackTHC and its Directors.” This is the opposite of an agreement.

Therefore, Gainsburg failed to plead the first element of a civil conspiracy claim and the

Amended Complaint must be dismissed.

19. Second, Gainsburg utterly failed to plead an unlawful act.7 Gainsburg pled, “Defendant

BioTrackTHC’s direct phone communication and more importantly the subsequent text

Communication with a represented party, Mr. Holzworth, by virtue of Vo texting him in

order to coerce Mr. Holzworth to settle on their Defendants’ terms . . . are both, unethical

7 As Holzworth’s testimony shows, much of Gainsburg’s allegations are based on total falsities. Gainsburg is

completely unable to prove many of his assertions, including the requisite unlawful act, because Gainsburg’s alleged

unlawful act never occurred. Greenwood is legally allowed to talk with Holzworth and no threats ever occurred. Put

simply, this Amended Complaint has absolutely no basis in fact or law. This Amended Complaint must be dismissed.




and unlawful, acts performed by the defendants.” However, Greenwood and Vo, non-

attorney members of the Board of Directors of Bio-Tech and friends of Holzworth’s,

communicating with Holzworth, is not unlawful.8 See Comment to R. Regulating Fla. Bar

4-4.2 (“Parties to a matter may communicate directly with each other, and a lawyer is not

prohibited from advising a client concerning a communication that the client is legally

entitled to make, provided that the client is not used to indirectly violate the Rules of

Professional Conduct.”).

20. Moreover, Bio-Tech, Vo, and Greenwood are not bound by the Rules Regulating the

Florida Bar. Therefore, as a matter of law, Gainsburg’s allegations that Bio-Tech, Vo, and

Greenwood, performed an unlawful act solely based on a violation of the Rules Regulating

the Florida Bar, cannot pass muster and Gainsburg has failed to properly plead the second

element of civil conspiracy. Thus, Gainsburg, has failed to state a cause of action as a

matter of law and the Amended Complaint must be dismissed. Cf. Chapter 4. R. Regulating

Fla. Bar Preamble: A Lawyer’s Responsibilities (“Violation of a rule should not itself give

rise to a cause of action against a lawyer . . . .”).

21. Third, Plaintiff merely asserts a legal conclusion, that “all named Defendants conspire[ed]

with one another unethically to violate the Rules of the Florida Bar regarding

communications with an opposing party that is represented by Counsel at the time of said

communications.” This is insufficient to state a cause of action for civil conspiracy. See

Eagletech Commc’ns, Inc. v. Bryn Mawr Inv. Grp., Inc., 79 So. 3d 855, 863 (Fla. 4th DCA

8 Moreover, although no civil conspiracy occurred here (especially as shown through Holzworth’s deposition),

Gainsburg would never be able to prove a civil conspiracy existed as Shiner Law Group and its attorneys and Bio-

Tech and its Board of Directors members. As Gainsburg repeatedly stated in Holzworth’s deposition, there is an

attorney/client privilege in Florida, and, it exists between Shiner Law Group and its attorneys and Bio-Tech and its

Board of Directors members.




2012) (internal citations and quotations omitted).

22. Fourth, Gary Greenwood, Patrick Vo, and Bio-Tech must be dismissed from this case

because as the corporation itself and members of the Board of Directors, they cannot

conspire with themselves. Garrido v. Burger King Corp., 558 So. 2d 79, 81 (Fla. 3d DCA

1990) (“A corporation cannot conspire with its own directors, officers or employees.”); see

Lake Hosp. & Clinic, Inc. v. Silversmith, 551 So. 2d 538 (Fla. 4th DCA 1989). Moreover,

Defendants Shiner Law Group, P.A., Stratton Smiley, Esq., and David I. Shiner, Esq. were

acting as agents for Bio-Tech, Vo, and Greenwood. Therefore, the Bio-Tech defendants

could not conspire with its agents under the above authority and no conspiracy could take

place with Bio-Tech, Vo, and Greenwood as a matter of law. Thus, the Amended

Complaint must be dismissed for failure to state a cause of action.

23. Fifth, any allegations in Paragraph 46 of harassment, tortious interference, and other illegal

acts, certainly do not meet the requisite pleading requirements, and must be stricken.

24. Finally, Gainsburg’s prayer for $100,000.00 in actual damages for costs and attorneys’ fees

must be stricken as it is in complete contradiction to his allegation in Exhibit “A” of the

Amended Complaint that he accrued $7,500.00 in attorneys’ fees. See Fla. R. Civ. P. 1.120,

Author’s Comment (“In the event of inconsistency the exhibits will control.”).

PLAINTIFF’S AMENDED COMPLAINT MUST BE DISMISSED FOR GAINSBURG’S

FAILURE TO COMPLY WITH RULE 1.110 OF THE FLORIDA RULES

OF CIVIL PROCEDURE

25. Gainsburg’s Complaint must be dismissed for failure to comply with rule 1.110 of the

Florida Rules of Civil Procedure and for failure to properly plead a cause of action.

26. Pursuant to rule 1.110(f), each claim being pled against separate defendants should be pled

in separate counts.




27. Specifically, rule 1.110(f) states, in pertinent part:

All averments of claim or defense shall be made in consecutively numbered

paragraphs, the contents of each of which shall be limited as far as

practicable to a statement of a single set of circumstances . . . . Each claim

founded upon a separate transaction or occurrence and each defense other

than denials shall be stated in a separate count or defense when a separation

facilitates the clear presentation of the matter set forth.

28. Thus, “each claim should be pleaded in a separate count instead of lumping all defendants

together.” Pratus v. City of Naples, 807 So. 2d 795, 797 (Fla. 2d DCA 2002).

29. Here, Gainsburg failed to comply with rule 1.110 because his Complaint is against seven

(7) defendants in one count and it fails to distinguish separately how each defendant is

allegedly liable for civil conspiracy

30. As a result, Defendants are not separately on notice of what actions they are alleged to have

committed that would result in their liability for civil conspiracy, and thus, each separate

defendant cannot defend against such allegations. Thus, this Court must dismiss the

Amended Complaint.

WHEREFORE, Defendants, BIO-TECH MEDICAL SERVICES, INC., GARY

GREENWOOD, and PATRICK VO, respectfully request this Honorable Court to enter an Order

dismissing Plaintiffs’ Amended Complaint with prejudice, and award any such other and further

relief as this Honorable Court deems just and appropriate.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was served e-filed on

this 24th day of March, 2017 to the following:

Barry Gainsburg, P.A.

Attn: Barry R. Gainsburg, Esq.

607 Sea Turtle Way




Plantation, FL 33324

Primary: [email protected]

McDonald Hopkins, LLC

Attorneys for Defendants, David I. Shiner, Esq.,

Stratton Smiley, Esq., and Shiner Law Group, P.A.

Attn: Jeremy M. Colvin, Esq.

505 South Flagler Drive, Suite 300

West Palm Beach, FL 33401



Respectfully submitted,

Shiner Law Group, P.A.

Attorneys for Defendants

95 South Federal Highway, Suite 200

Boca Raton, FL 33432

T: 561-368-3363

F: 561-368-3364


By: /s/ David I. Shiner

DAVID I. SHINER

Florida Bar No.: 57272

STRATTON A. SMILEY Florida Bar No.: 111780

mailto:[email protected]

