"Defending a tortious interference claim may include the following:
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“Embedded within the essential elements of the tort of intentional interference . . . is the legal requirement that the plaintiff prove causation.” St. Johns River Water Mgmt. Dist. v. Fernberg Geological Servs., Inc., 784 So. 2d 500 (Fla. 5th DCA 2001).
“The third element of the tort of intentional interference . . . is the causation element.” Mortg. Now, Inc. v. Guaranteed Home Mortg. Co., Inc., 545 F. App’x 809 (11th Cir. 2013).
Plaintiffs must prove that Defendants “manifested a specific intent to interfere with” and “intended to procure a breach of” the contractual or business relationships. Fiberglass Coatings, Inc. v. Interstate Chem., Inc., 16 So. 3d 836 (Fla. 2d DCA 2009).
Predisposition to Breach
The Florida Supreme Court has long held that no liability for tortious interference exists unless the plaintiff can establish that the defendant induced another party to breach a contract or sever a business relationship. Dade Enters. v. Wometco Theatres, 160 So. 209 (Fla. 1935).
“The gravamen of an action for tortious interference with a contractual relationship is . . . whereby one contracting party is induced to breach the contract to the injury of another.” McKinney-Green, Inc. v. Davis, 606 So. 2d 393 (Fla. 1st DCA 1992).
Florida law defines induce as “to bring on or about, to affect, cause, to influence to an act or course of conduct, led by persuasion or reasoning, incite by motives, prevail on.” Farah v. Canada, 740 So. 2d 560 (Fla. 5th DCA 1999).
Under Florida law, a contracting party’s predisposition to breach precludes a finding of proximate causation and serves as an absolute bar to a claim for tortious interference. See Ingenuity, Inc. v. Linshell Innovations Ltd., 644 F. App’x 913, 916 (11th Cir. 2016) (“Under Florida law, a party’s predisposition to breach precludes any finding that it was induced to breach by a third party.”); Mortg. Now, Inc. v. Guaranteed Home Mortg. Co., Inc., 545 F. App’x 809, 811 (11th Cir. 2013)(“Further, if one party to a contract is already predisposed to breach, then the third party’s actions cannot have induced the breach.”).
In other words, “[p]redisposition to breach means ‘that the breach by the party to the contract rather than the persuasion by the defendant was the proximate cause of the plaintiff’s damage.’” Westgate Resorts, Ltd. v. Sussman, 387 F. Supp. 3d 1318 (S.D. Fla. 2019); see also Ingenuity, Inc. v. Linshell Innovations Ltd., 644 F. App’x 913 (11th Cir. 2016) (holding that the plaintiff cannot prevail because “the undisputed evidence in the record establishes that [the contracting party] either believed it was justified in terminating the distribution agreement with [the plaintiff] or simply did not care” and therefore, either way, the contracting party “indisputably was predisposed to breach”).
Identifiable and Specific Customers
It is well-settled that a plaintiff cannot establish the existence of a business relationship without “proof of an existing relationship with identifiable and specific customers.” Maxi-Taxi of Fla., Inc. v. Lee Cty. Port Authority, 2008 WL 1925088 (M.D. Fla. Apr. 29, 2008).
Said another way, a business relationship “require[s] a relationship with a particular party, and not just a relationship with the general business community.” Dunn v. Air Line Pilots Ass’n, 193 F.3d 1185 (11th Cir. 1999).
The plaintiff must “allege and prove a business relationship with an identifiable person” as opposed to a business relationship with “the public at large." Ferguson Transp., Inc. v. North Am. Van Lines, Inc., 687 So. 2d 821 (Fla. 1996).
“This requires, as a threshold matter, that plaintiff prove the existence of a business relationship with an identifiable person.” Gutierrez v. Martin Engin’g, 2006 WL 8433636 (S.D. Fla. Apr. 28, 2006).
Failure to establish this element can be fatal to a plaintiff's claim. See Maxi-Taxi of Fla., Inc. v. Lee Cty. Port Authority, 2008 WL 1925088 (M.D. Fla. Apr. 29, 2008) (the evidence “could not support a claim of tortious interference” because “the plaintiff had not demonstrated the existence of specific prospective business relationships with which Defendant allegedly interfered”); USB Acquisition Co., Inc. v. Stamm, 660 So. 2d 1075 (Fla. 4th DCA 1995) (granting defendant’s motion for directed verdict on tortious interference claim because “[t]here was no evidence that Appellees interfered with any ongoing business relationship between the buyer and any identifiable person or entity, an essential element”).
Actual and Idenfitiable Understanding or Agreement
Moreover, “[a]s a general rule, an action for tortious interference with a business relationship requires a business relationship evidenced by an actual and identifiable understanding or agreement which in all probability would have been completed if the defendant had not interfered.” MQ Assocs., Inc. v. North Bay Imaging, LLC, 270 F. App’x 761 (11th Cir. 2008) (quoting Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So. 2d 812 (Fla. 1996)).
The Florida Supreme Court has made clear that, although “interference with present or prospective customers” may provide grounds for tortious interference, no such claim exists if the plaintiff cannot establish “an identifiable agreement with its past customers that they would return[,]” because “mere hope that some of its past customers may choose to [return]” and mere “speculation regarding future sales to past customers” cannot be the basis for a tortious interference claim. Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So. 2d 812 (Fla. 1996).
"[T]he plaintiff had alleged existing business relationships that merely had the possibility of continuing, and thus, could not support a claim for tortious interference. . . . As noted above, [the plaintiff] may not recover, . . . damages where the relationship is based on speculation regarding future sales to past customers.” Maxi-Taxi of Fla., Inc. v. Lee Cty. Port Authority, 2008 WL 1925088 (M.D. Fla. Apr. 29, 2008).
“Absent an allegation of an identifiable agreement with its past customers that they would return for future business, . . . [t]he mere hope that some of its past customers may choose to buy again cannot be the basis for a tortious interference claim.” MQ Assocs., Inc. v. North Bay Imaging, LLC, 270 F. App’x 761 (11th Cir. 2008).
“[T]hese vague references to [the plaintiff’s] business relationships with unidentifiable, potential, and/or future customers are precisely the speculative, community-at-large allegation[s] prohibited under governing Florida law.” BPI Sports, LLC v. Labdoor, Inc., 2016 WL 739652 (S.D. Fla. Feb. 25, 2016).
Pleading a Prima Facie Case of Tortious Interference with an Advantageous Business Relationship:
(1) the existence of a business relationship, not necessarily evidenced by an enforceable contract;
(2) knowledge of the relationship on the part of the defendant;
(3) an intentional and unjustified interference with the relationship by the defendant; and
(4) damage to the plaintiff as a result of the breach of the relationship.
See Tamiami Trail Tours, Inc. v. Cotton, 463 So. 2d 1126, 1127 (Fla. 1985).
The Florida Supreme Court and the Eleventh Circuit have concretely established that the first element of a claim for tortious interference with an advantageous business relationship is “the existence of a business relationship.” See Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So. 2d 812 (Fla. 1996); Intern. Sales & Serv., Inc. v. Austral Insulated Prods. Inc., 262 F.3d 1152 (11th Cir. 2001).
In order to establish standing, the relationship “need not be evidenced by an enforceable contract,” but it must be one “to which a plaintiff is a party,” and one which “affords [a] plaintiff existing or prospective legal or contractual rights.” Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So. 2d 812 (Fla. 1996); Fernandez v. Ganguzza, LLP, 30 So. 3d 644 (Fla. 3d DCA 2010); see also MQ Assocs., Inc. v. North Bay Imaging, LLC, 270 F. App’x 761 (11th Cir. 2008) (“An intentional interference claim under Florida law requires a contract or business relationship under which the plaintiff has legal rights.”).
Even though a plaintiff may have an economic interest in a business relationship or agreement that the plaintiff is a non-party to, and may suffer real harm if the relationship or agreement is interfered with, a plaintiff nonetheless cannot sue a defendant for tortious interference based on that relationship or agreement. See, e.g., Plain Bay Sales, LLC v. Gallaher, 2019 WL 6206836 (S.D. Fla. Nov. 21, 2019); Elandia Intern., Inc. v. Koy, 2010 WL 2179770 (S.D. Fla. Feb. 22, 2010).
This is a strict requirement under Florida law, and thus, an action for tortious interference will be rejected unless the plaintiff is a party to, and has legal rights under the business relationship or agreement.
“An essential element of a claim for intentional interference with an advantageous business relationship is that the interference be both direct and intentional.” Lawler v. Eugene Wuesthoff Mem’l Hosp. Ass’n, 497 So. 2d 1261 (Fla. 5th DCA 1986).
“To be liable for tortious interference, the offending party’s interference must be both direct and intentional.” Romika-USA, Inc. v. HSBC Bank USA, N.A., 514 F. Supp. 2d 1334, 1340 (S.D. Fla. 2007).
Therefore, “[t]o properly state a claim for tortious interference, a plaintiff must show that a defendant’s actions directly harmed the plaintiff.” Miracle 7, Inc., v. Halo Couture, LLC, 2014 WL 11696708, at *4 (S.D. Fla. Jan. 17, 2014).
More specifically, “[i]n order to be actionable, the interference must be direct; conduct that has only indirect consequences on the plaintiff will not support a claim for tortious interference.” Williamson v. Sacred Heart Hosp. of Pensacola, 1993 WL 543002, at *51 (N.D. Fla. May 28, 1993).
Florida courts have consistently rejected actions for tortious interference when the interference was “only negligently or consequentially effected.” Ethyl Corp. v. Balter, 386 So. 2d 1220 (Fla. 3d DCA 1980) (“[P]roof of a direct interference . . . is indispensable to the existence of an actionable wrong . . . [t]here is no such thing as a cause of action for interference which is only negligently or consequentially effected.”); Merrill Lynch Bus. Fin. Servs., Inc. v. Performance Mach. Sys. USA, Inc., 2005 WL 975773, at *7 (S.D. Fla. Mar. 4, 2005) (“[A] cause of action for interference which is only negligently or consequentially effected does not exist.”); Miracle 7, 2014 WL 11696708, at *4 (“[Plaintiff] has not alleged that [the defendant] directly and intentionally interfered with a specific business relationship . . . [a] cause of action for interference which is only negligently or consequentially effected does not exist.”).
Similarly, a plaintiff cannot bring a tortious interference action when the damages were merely an indirect or incidental consequence of the defendant’s conduct. See Lawler v. Eugene Wuesthoff Mem’l Hosp. Ass’n, 497 So. 2d 1261 (Fla. 5th DCA 1986) (“The complaint failed to allege direct interference by the [defendant,]. . . [c]learly, the alleged interference with the[] relationships was only an indirect consequence” of the defendant’s conduct.); Williamson, 1993 WL 543002, at *51 (holding that the plaintiff’s damages were “incidental, and therefore, not actionable”); Lake Hosp. & Clinic, Inc. v. Silversmith, 551 So. 2d 538 (Fla. 4th DCA 1989) (holding that “[i]t is not sufficient to show that there was an interference with such relationships as an indirect consequence” of the defendant’s conduct); Pierson v. Orlando Reg’l Healthcare Sys., Inc., 619 F. Supp. 2d 1260, 1285 (M.D. Fla. 2009) (“Plaintiff has not stated claims for intentional interference. [Plaintiff] falls short of alleging direct and intentional interference as required under Florida law. Instead, . . . the allegations . . . allege interference only as an indirect consequence of the [defendant’s conduct.]”).
Under Florida law, a defendant's actions, "even if otherwise actionable," may not result in any recoverable damages if a plaintiff's damages resulted from “factors totally independent of any actions taken by [a defendant].” In re Maxxim Med. Grp., Inc., 434 B.R. 660 (Bankr. M.D. Fla. 2010).
As explained by the Eleventh Circuit: "[Plaintiff] has presented no evidence to distinguish between persons who chose not to stay at [Plaintiff's business] as a result of [Defendants’] bad acts and those who simply rejected [Plaintiff] because [Defendants] presented a more attractive or simply an additional choice. [Plaintiff's] failure to identify a causal connection between [Defendants’] tortious activity and the interruption of any particular business relationship requires us to affirm the district court’s grant of summary judgment." Camp Creek Hosp. Inns, Inc. v. Sheraton Franchise Corp., 139 F.3d 1396, 1409 (11th Cir. 1998).
