27. lta logistics v enrique varona (defendant motion to dismiss)

7/28/2019 27. LTA LOGISTICS v Enrique Varona (Defendant Motion to Dismiss)

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IN THE COUNTY COURT OF THE EL EVEN TH JUDICIALCIRCUIT IN AND FOR M I A M I -D A D E COUNTY, FLORIDA

GE NE R A L JURISDICTION DIVISION

CASE NO. 11 20527 CA 21LTA LOGISTICS, INC.LESTER TRIMINO, E T A L ;PLAINTIFF.y

Enrique Varona,Defendant ,

NOTICE OF HEARINGPlease take notice, that th e Defendant, Enriqu e Varona, will call up fora hearing to run conc urrently with the opposing counsels scheduledappearance and hearing on their motion fo r leave to amend complaint,before the Honorable Antonio Arzola, one of the judges in the abovestyled court at Miami-Bade County Courthouse located at 73 WestFlagler Street, Miami, Florida 33130 on Thursday, May 30th, 2013 at9:00 a.m. in courtroom 1110 or as soon thereafter as counsel may beheard on:DEFENDANT'S MOTION TO DISMISS CLAIM FO R LACK OFCOURTS SUBJECT MATTER JURISDICTION & PERSONAL

JURISDICTION FOR IMPROPER CHOICE OF LAW ANDV E N U E IN BREACH O F CONTRACT

&MO TION FOR SEPARATE TRIALS


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IN THE COUNTY COURT OF THE ELEVENTH JUDICIALCIRCUIT IN AND FOR MIAMI DADE COUNTY, FLORIDA

GENERAL JURISDICTION DIVISIONCASE NO. 11 20527 CA 21

LTA LOGISTICS, INC.LESTER TREVHNO, etal;

V.

Enrique Varona,Defendant ,

DEFENDANTS MOTION TO DISMISS ACTION WITHPREJUDICE FOR LACK OF SUBJECT MATTER

JURISDICTION DUE TO IMPROPER LA W & VENUEIN BREACH OF CONTRACT

*NOW COMES, the defendant, Enrique Varona, who moves theCourt to dismiss this action for lack of subject matter jurisdiction due toimproper use of law and forum in breach of contract an shows;

BACKGROUND

1 . Plaintiff at all times has proceeded in this action in violation ofF.R.C.P., rule 1.130(a) which requires a Plaintiff to attach copies of allbonds, notes, bills of exchange, contracts, accounts, or documents uponwhich action may be brought to its complaint. It is only because ofrecent discovery that the defen dan t brings this m otion to this court.


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2. The jurisdictional question can be raised at any time and can neverbe time-barred. DeClaire v. Yohanan, 453 So. 2d 375 (Fla. 1984).

IMPROPER CHOICE OF LAW & VENUEIN BREACH OF CONTRACT

3. Plaintiff and defendant entered into an employment Non-solicitationNon-disclosure Agreement signed and executed on June 9, 2009 (fromhere on "Agreement).4. Clause 10, of page 3 of the "Agreement" incorporates amandatory forum selection clause that contractually require that thislawsuit be filed in the forum named in the clause. Golden PalmHospitality, 874 So. 2d at 1236. "As a gene ral principle, a trial courtmust honor a man da tory forum selection clause in a contract. . ." se e

V

Clause 10, page 3 of the Agreement which states:"10. CHOICE OF LAW AND VENUE: it is understoodand agreed tha t the construction and interpretation of thisagreement shall at all times and in all respects begoverned by the internal laws of the Commonwealth ofVirginia, without giving effect to the conflict of lawprovisions thereof. Ve nue of any action brou ghtexclusively in the circuit court of Henrico, Virginia, orthe U.S. District Court for the Eastern District ofVirginia."


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5. In order for a "Choice of Law" clause to have effect, there mustalso be an accompanying "Choice of Venue" clause, where both partiesagree to a particular place as the proper location to resolve any disputes.The plaintiff and defendan t agreed to a choice of law and venue in theCom mo nwea lth of Virginia to the exclusion of all others.6. The general test fo r determining whether a forum selection clauseis "mandatory" is the use by the parties of language indicating"exclusivity." Golden Palm Hospitality, 874 So. 2d at 1236. "Absentsuch language, th e clause will be considered permissive." Id . If theforum selection clause "statefs] or clearly indicatefs] that any litigationmust or shall be initiated in a specified forum," then it is mandatory.Shoppes L.P . v. Conn, 829 So. 2d 356, 358 (Fla. 5th DC A 2002).

7. The defendant on inform ation and belief know s that Virginia lawsfavor employees over employers more so than Florida laws. Thedefendant believes that it would be of great prejudice to him if this casewere to be tried in Florida instead of V irginia.8. The Defendant did not agree to waive the terms of thecontract between him and the plaintiff including clause 10 of theAgreement.


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CONCLUSIONThis action has been used as a vehicle for the Pla intiff to attack and

harass the defendant unmercifully for almost tw o years in an attempt tosilence his substantiated claims of their crimes and misdeeds. Therecord is replete w ith Plaintiff com mitting num erous frauds upon theCourt and denial of due process. The evidence in the form ofnotarized affidavits specifying these frauds remain entirely un-refuted.Based on the record, the Court should conclude that this action amountsto nothing less than criminal extortion and attempted grand theft byPlaintiff against Defendant. The Court cannot be in a position ofenabling Plaintiff to commit felony crimes. In addition, this courtshould be aware that a judgment entered by a court that lacks subjectma tter jurisdiction is a void judgme nt w ithout an y legal force, "A trialcourt's lack of subject matter jurisdiction ma kes its judgments void".See Strommen v. Strommen, 927 So. 2d 176, 179 (Fla. 2d DC 2006) and''judgment rendered by court is void if court lacks subject matter

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jurisdiction". Fedan Corp. v. Reina. 695 So. 2d 1282, 1283 (Fla. 3dDCA 1997).

WHEREFORE, Defen dant, Enrique Varon a, requests from thishonorable court to enter a judg m ent dismissing this action withprejudice for the reasons stated above.

espectfully submitted,.Varona, Sui Juris acting Pro-se

1482315W 125 Ct, Miam i, Florida 33186305-812-3784


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LTA LOGISTICS, INC.NONDISCLOSURE AND NONSOLICITATION AGREEMENT

("Agreement")

/ \ _ u , "r~ I \THIS AGREEMENT ismade and entered into this Hdayof UQ\J 20("VQ , byandbetween LTA' f t j iLogistics Incorporated, aFlorida corporation, ["LTA or theCompany"],andf""jtJjUL-A jfliA jft^M ^Employee or"[Associate's Name]").

RECITALS

WHEREAS, LTALogistics desiresto employ, [Associate's Name],and Employee desiresto perform services for LTA in apositionwhich will allow Employeeaccess to various trade secrets andconfidential information belonging to LTA andwhich require Employee to performservices of aunique andspecial nature.WHEREAS, as a condition of [Associate's Nam e]'s employment. LTA desires to receive from [Associate's Name]covenants(a)not to disclose anyconfidential information acquired duringor reasonably after the course of employmenwith LTA,(b) not to solicit anyemployeeof LTA to terminate her or hisemployment with LTA, and(c)not to solicitanycustomer of LTA to terminate its relationship with LTA.WHEREAS, LTA and [Associate's Name] desire to setforth inwriting the terms and conditions of their agreements andunderstandingswith respect to these covenants against disclosureof confidential information, solicitation of employees,solicitation of customers, andcompetition with LTA, that Agreement is acondition of Employees employment andancillary thereto, andthat thisAgreementdoes not purport to set forth all the terms of such employment.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing, and any consideration set forth in anySchedule A hereto, and ofthe mutual promises herein contained, and of other goodandvaluable consideration,the receipt andsufficiencyofwhich are hereby acknowledged,the parties hereto (Employeeand LTA) intending legally to bebound, hereby agree asfollows.

1. ACKNOWLEDGMENTS. LTA sengaged n, among other things, the business of transporting freightNationwide, and as well as related services. Employee acknowledgesthat LTA's business and servicesarehighly customer-specific and customer-dependent, involvinga high degree of cultivated and well developedcustomer relationships, further dependent upon the identity andparticular needs of LTA's customers, notgenerally known in the industry. These relationship also are reflected in LTA's documents and informationregardingits customers, suppliers, services, ogistics, methods of operation, sales, pricing, and cost, all of whichare highly confidential andconstitute critical trade secrets. Employeefurther acknowledgesthat the services tobe renderedto LTA by Employee will be of aspecialand unusual character which has aunique value to LTA and


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Pg. 2/3that Employee will have access to tradesecrets an d confidential information belonging to LTA, the loss ofwhich cannot adequatelybecompensatedby damages in anactionat law.

2. COVENANT AGAINST DISCLOSURE OF CONFIDENTAL INFORMATION. During the termof Employee'semployment with LTA an d for a period of two (2) years from the voluntaryor involuntary termination ofemployment with LTA, regardless of the reason, Employee shall not use for an y purpose or disclose to anypersonor entity anyconfidential information acquired during the courseof employment with LTA. Employeeshall not, directly or indirectly, copy, take, or remove from LTA's premises, any of LTA's books, records, customelists, or any other documents or materials related to LTA. Th e term "conditional information" as used in thisAgreement includes, but not limited to, records, ists, and knowledge of LTA ts customers, suppliers, methods ofoperation, processes, trade secrets, methods of determination of prices, financial condition, profits, sales,netincome, and indebtedness,as the same may exist from time to time.

3. NONSOLICITATION OF EMPLOYEES. Duringthe term of Employee's employmentwith LTA and for a periodof four (4) months for each year the Employee isemployed by LTA (not to exceed aperiodof twelve months)fromthevoluntary or involuntary terminationof Employee's employment with LTA, regardless of the reason fortermination, Employee shall not, either on her or his own account or for any person,firm, partnership,corporation, or other entity (a) solicit, interferewith, or endeavor to cause an y employee of LTA to leave his orhe r employment; or (b) induceor attempt to inducean y such an y employee to breach her or his employmentagreement with LTA.

4. NONSOLICITATION OF CUSTOMERS. During the term of Employee's employmentwith LTA and for aperiod of four (4 ) months for each year the Employee is employed by LTA(not to exceed a periodof twelvemonths) fromthe voluntaryor involuntary termination of Employee's employmentwith LTA for any reasonwhatsoever, Employee shall not solicit, induce, or attempt to induce any past or current customer of LTA withwhom Employeehaddealt or who were serviced by other employeesof LTA who were supervisedby Employeeat any time during Employee's employment for one year prior to h is or her leaving LTA.

5. NON-DISPARAGEMENT. Employee hereby agrees that an y disparaging or defamatory commentor actagainst LTA isdamagingto LTA and its reputation. Thus, employeeagrees not to make anysuch comment ortake any such disparaging action against LTA. Employ ee further acknowledges and agrees that and any suchcomment or action would constitute a material breach of this Agreement.

6. REMEDIES. Inaddition ix > all of the remedies otherwiseavailable to LTA, including, but not limited to,recovery from Employee of damages and reasonable attorney's fees incurred in the enforcement of thisAgreement, theCompany shall have the right to injunctive relief to restrain andenjoinanythreatened breach ofthe provisions of Paragraphs 2, 3,4, and 5 of this Agreement. All of LTA's remedies for breach of this Agreementshall be cumulativeand the pursuit of one remedy shall not be deemed to exclude an y other remedies.

7. REASONABLENESS OF RESTRICTIONS. Employeehas carefully readand considered the provisions hereofand, having done so,agrees that the restrictions set forth inParagraphs 2,3,4, and 5 hereof (including, but notlimited to, the time periodsof restriction ineach of such paragraphs) are fair and reasonable and are reasonablyrequired for the protection of the interests of the Company.

8. SEPARATE COVENANTS. This Agreement shall bedeemedto consist of aseriesof separate covenants.Should adetermination bemade by acourt of competent jurisdiction that the character, duration, orgeographical scope of any provisionof this Agreement sunreasonable in light of the circumstances asthey thenexist, then it is the intention and the agreementof LTA and(Associate'sName) that thisAgreement shall beconstructed by the court in such a manner as to impose only those restrictions on the conduct of Employeewhich are reasonable in light of the circumstances as they then exist and as are necessary to assure LTA of the


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intended benefit of this Agreem ent. If, in any judicial proce eding, a cou rt sh all refuse to enforc e all of theseparate covenants deemed included herein because, taken together, they are more extensive than necessaryto assure theCompany of the intended benefit of thisAgreement, then it isexpressly understood and agreed bLTA and Employee that those of such covenants which, if eliminated, would permit the remainingseparatecovenants to beenforced insuch proceeding, shall for the purpose of such proceeding, bedeemed eliminatedfrom the prov isions hereof. In the eve nt of a violation by Employee, the term of each such covenan t so v iolatedshall be automatically extende d for a period of one (1) year from the date on which Employee permanentlyceases such violation or for a period of one (1) year from the date of the entry by a court of c ompetentjurisdiction of a final order or judgment enforcing such covenant, whichever period is later.

BURDEN AND BENEFIT. This Agreeme nt shall be binding upon, and shall insure to the benefit of, LTA andEmployee, andtheir respective successors andassigns. TheCompany shall have the right to assign its rightshereunder to anysuccessor in interest, whether bymerge, consolidation, sale of assets, or otherwise.

CHOICE OFLA W ANDVENUE. It is understood and agreed that the constructionand interpretation of thisAgreement shall at all times and in all respects begoverned by the internal laws of the Commonwealth ofVirginia, without giving effec t to the conflict of law provisions thereof. Venue of anyaction brought to enforcerelatingto this Agreemen t shall be brought exclusively n the Circuit Court for Henrico, Virginia, or the U.S.District Court for the Eastern District of Virginia.

SEVERABILITY. Theprovisions of this Agreement (including inparticular, but not limited to, the provisionsof Paragraphs 2,3,4, and 5 hereof) shall bedeemed severable, and the invalidity or unenforceability of any oneor more of the provisions hereof shall not affect thevalidity or enforceability of any one or more of the otherprovisions hereof.

ENTIRE AGREEMENT. This Agreement contains the entire agreement and understanding by and betweenLTA and Employeewith respect to the coven ants containe d herein, and no representations, promises,agreements, or understandings, written or oral, not herein contained shall be of any force or effect. No chargeor modifications hereo f shall be valid or binding unlegs the same is in writing and signed by the party againstwhom such waiver is sought to b e enforced . No validfwaiver of any provision of this Agreem ent at any time shabe deemed a waiver of any other provision of this Agreement at such time or will be deemed a valid waiver ofsuch provision at anyother time.

I1, ' * IN W ITNESS WHEREOF, LTA and [Associate's Name] have duly executed this Agreement as of the day andfirst written^bove.

Emplpwee / Signature

27. lta logistics v enrique varona (defendant motion to dismiss)

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