In Vista Network’s lawsuit against Phillip Piccolo and associates, a number of claims have been dismissed for failure to state a claim.

The gist of failure to state a claim is that a plaintiff fails to state specific claims, upon which relief is sought.

Reciting events or allegations aren’t enough, within the context of the law specific claims have to be made.

It is on this basis that Piccolo and his associates requested dismissal of counts 3, 4, 6 to 13 and 15 and 17 in Vista Network’s lawsuit.

Count 3 pertains to theft in bitcoin on alleged mining hardware orders.

Defendants argue that Plaintiffs’ allegation that Johnson stole the revenue for at least two Mini Miner orders is not specific because the alleged theft of revenues is undefined and not detailed as to the form of the alleged revenues.

Plaintiffs do not include a serial number, what form the alleged converted revenues were in, or any specific and identifiable funds.

Without alleging what form the converted revenues were in, Plaintiffs cannot sufficiently allege a cause of action for conversion for the alleged stealing of revenues.

Count 4 was dismissed for similar reasons;

Upon review, the Court finds that Plaintiffs’ conclusory allegations that Johnson diverted thousands of dollars in unearned commissions and that both Johnson and Reid would receive unauthorized and unearned commissions do not state specific and identifiable funds necessary for a conversion claim.

Count 10 (civil conspiracy) saw Vista Network cite allegedly unlawful acts, but fail to provide specifics.

In the First Amended Complaint, Plaintiffs do not explicitly specify or allege the underlying causes of action supporting the civil conspiracy claim, but it appears that Plaintiffs assert four bases for civil conspiracy:

(1) fraudulent misrepresentation, (2) fraudulent concealment, (3) fraud in the inducement, and (4) tortious interference.

However, because Plaintiffs fail to sufficiently state a claim for fraudulent misrepresentation, fraudulent concealment, or fraud in the inducement, and the Court has determined that the claim for tortious interference fails as a matter of law, the claim for civil conspiracy necessarily fails.

Counts 6 to 8 were dismissed on technicalities pertaining to representations made to Vista Network regarding the defendants credibility and honesty.

It is the responsibility of the buyer of a product or service to investigate the truth of any “puffing” statements, as such declarations “do not constitute fraudulent misrepresentations.”

Joseph Reid’s representations of  Piccolo and Johnson being “trustworthy” and “legitimate” were deemed non-actionable statements of opinion.

He was also cleared of failing to disclose Piccolo, Kevin Johnson and Paul Morris were allegedly intent on committing fraud.

Tortious Interference (Count 9) was dismissed because Piccolo, Johnson and Morris were given a 10% ownership stake in Vista Network.

Thus, the PJM Defendants have a direct beneficial economic interest over Vista and its customers and the PJM Defendants are not strangers to the business relationship.

Counts 11 to 13 pertain to the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) and trademark infringement claims.

This was also dismissed pertaining to the 10% ownership agreement.

Counts 15 and 16 (misappropriation of trade secrets claims) was dismissed because Vista Network failed to allege ‘they took reasonable steps to protect the alleged trade secret information.‘

Constructive Trust (count 17) was dismissed because, on its own, constructive trust is not a valid independent claim.

In light of the dismissals, Vista Network has been given until April 29th to file a second amended complaint.

 

Update 8th May 2020 – Vista Network’s lawsuit was voluntarily dismissed by Armen Temurian. As of May 1st the case is closed.