Beruflich Dokumente
Kultur Dokumente
Plaintiff,
Defendants.
_____________________________________/
AMENDED COMPLAINT
Garfinkel Trial Group (“GTG”), sues Defendants, Kenneth Romain, Jeff Dobbins, Ivan
Browner, Stephen Browner, and TSSA Storm Safe, Inc., and alleges:
County, Florida.
Florida, and is an owner, officer, employee, and/or other agent of TSSA Storm Safe, Inc.
Case 6:08-cv-01975-MSS-GJK Document 30 Filed 08/11/2009 Page 2 of 17
County, Florida, and is an owner, officer, employee, and/or other agent of TSSA Storm
Safe, Inc.
Beach County, Florida, and is an owner, officer, employee, and/or other agent of TSSA
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
GENERAL ALLEGATIONS
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
damages, GTG retains appraisers and other experts to evaluate the extent of the damages
GTG through various companies that either employed or were engaged by Romain.
2
Case 6:08-cv-01975-MSS-GJK Document 30 Filed 08/11/2009 Page 3 of 17
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
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
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
formed by Romain.
3
Case 6:08-cv-01975-MSS-GJK Document 30 Filed 08/11/2009 Page 4 of 17
“Hunter R Contracting” in the total amount of approximately $2.6 million to GTG. True
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.
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.
Garfinkel, therefore, determined that the services of Romain and HRC should be
terminated.
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
4
Case 6:08-cv-01975-MSS-GJK Document 30 Filed 08/11/2009 Page 5 of 17
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.
2008.
discovered that Romain, purporting to act through HRC, had engaged in a scheme to
24. Among other things, GTG discovered that Romain had engaged in a
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
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
5
Case 6:08-cv-01975-MSS-GJK Document 30 Filed 08/11/2009 Page 6 of 17
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
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
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
Case 6:08-cv-01975-MSS-GJK Document 30 Filed 08/11/2009 Page 7 of 17
back,” to Romain after the invoices were paid by GTG. This process is hereinafter
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
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.
“kickbacks” was equal to the difference between the actual cost of TSSA’s services and
36. The invoices attached hereto as Composite Exhibit “3” were submitted
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
7
Case 6:08-cv-01975-MSS-GJK Document 30 Filed 08/11/2009 Page 8 of 17
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’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
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.”
contacted GTG and claimed that monies “well in excess of $3 million” were owed by the
8
Case 6:08-cv-01975-MSS-GJK Document 30 Filed 08/11/2009 Page 9 of 17
law firm to HRC. Despite repeated requests, Rosenthal did not produce any
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,
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
violations of the Rules Regulating The Florida Bar, allegations which are untrue,
immaterial, and obviously designed to harass, embarrass, intimidate, extort, and destroy
47. Defendants filed motions to dismiss the lawsuit and served Rosenthal with
48. On October 17, 2008, before the motions to dismiss could be heard,
49. Before the lawsuit was dismissed, however, Romain and others had
9
Case 6:08-cv-01975-MSS-GJK Document 30 Filed 08/11/2009 Page 10 of 17
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
51. The attorney for TSSA in the lawsuit is Scott A. Mager (“Mager”). Mager
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,
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
Case 6:08-cv-01975-MSS-GJK Document 30 Filed 08/11/2009 Page 11 of 17
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.
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.
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
59. Dobbins/TSSA told clients of GTG that the law firm “is also well aware
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
Case 6:08-cv-01975-MSS-GJK Document 30 Filed 08/11/2009 Page 12 of 17
60. All conditions precedent to the filing of this action have occurred, been
COUNT I
Fraud (All Defendants)
62. This is an action against all the Defendants for their joint, collective, and
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
67. GTG relied on the false statements and its reliance was reasonable.
GTG has sustained actual damages and will continue to sustain such damages in the
future.
12
Case 6:08-cv-01975-MSS-GJK Document 30 Filed 08/11/2009 Page 13 of 17
WHEREFORE, GTG demands judgment against all of the Defendants, jointly and
applicable law;
COUNT II
Conversion (All Defendants)
70. This is an action against the Defendants for their joint, collective, and
71. The Defendants, through the Kickback and Fraudulent Invoice Schemes
misappropriated for their own benefit and/or the benefit of others, without the authority to
WHEREFORE, GTG demands judgment against all of the Defendants, jointly and
applicable law;
13
Case 6:08-cv-01975-MSS-GJK Document 30 Filed 08/11/2009 Page 14 of 17
COUNT III
Civil Conspiracy (All Defendants)
74. Beginning no later than November, 2007, and continuing through the
present, Defendants combined, conspired, confederated and agreed to enter into a scheme
75. Several overt acts were carried out in furtherance of the conspiracy,
Invoices Schemes described above, and the resulting theft of funds from GTG.
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
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
WHEREFORE, GTG demands judgment against all of the Defendants, jointly and
applicable law;
14
Case 6:08-cv-01975-MSS-GJK Document 30 Filed 08/11/2009 Page 15 of 17
COUNT IV
Intentional Inference with Business (All Defendants)
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
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.
non-parties of grievances and frivolous lawsuits, and general disparagement of GTG and
15
Case 6:08-cv-01975-MSS-GJK Document 30 Filed 08/11/2009 Page 16 of 17
Mr. Garfinkel to their clients, did, in fact, disrupt GTG’s business opportunities and client
relationships.
WHEREFORE, GTG demands judgment against all of the Defendants, jointly and
applicable law;
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
Case 6:08-cv-01975-MSS-GJK Document 30 Filed 08/11/2009 Page 17 of 17
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
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