Eric A.

BROWN, Individually and Derivatively on behalf of Metrics Medicus,

Incorporated, a Florida Corporation, Plaintiffs,
v.
Pamela ANDREATTA, Defendant,
v.
METRICS MEDICUS, INCORPORATED, a Florida Corporation, Nominal Defendant.
No. 3:18-cv-01002-MMH-JRK.
August 17, 2018.
Division: CV-E
Plaintiff's Motion for Temporary Injunction
David L. Luikart, David L. Luikart III, Fla. Bar No. 21079, [email protected], Patrick
M. Mosley, Fla. Bar No. 33735, [email protected], Tori C. Simmons, Fla. Bar. No.
107081, [email protected], Hill, Ward & Henderson, P.A, Post Office Box 2231,
Tampa, Florida 33601-2231, (813) 221-3900 (Telephone), (813) 221-2900 (Facsimile), for
plaintiff.
Plaintiff Eric A. Brown, individually and derivatively on behalf of Metrics Medicus,
Incorporated (“Metrics”), pursuant to Florida Rule of Civil Procedure 1.610, moves this Court to
grant a temporary injunction against Defendant Pamela Andreatta. Andreatta's improper and
illegal actions are currently jeopardizing the entire existence of Metrics, and immediate action is
necessary to restore Metrics to its former and operational state.
FACTUAL BACKGROUND1
In 2012, Brown and Andreatta (as well as other non-parties) began working together to create,
among other things, applications designed to assist medical providers. Over the years, both
Brown and Andreatta made valuable contributions, including ideas, expertise, and labor to the
venture. In 2013, a California corporation was created called Metrics Medicus (“California
Metrics”). The parties continued to collaborate and work together on various projects under the
umbrella of California Metrics, but California Metrics never issued any shares. In 2013, Brown
began serving as the Chief Medical Officer of California Metrics.
In 2015, all members of the joint venture and/or California Metrics except for Brown and
Andreatta had left the venture. Brown took over management of the existing business
relationships, business accounts, and other management tasks of California Metrics, including
securing and maintaining insurance for the corporation. Andreatta and Brown then began
discussing their plan for the venture moving forward. Andreatta proposed that Andreatta and
Brown continue their business venture as equal partners and owners. To achieve this purpose,
Andreatta proposed that she be reimbursed for certain monetary contributions she made to
California Metrics to equalize the respective contributions made by Andreatta and Brown.
The proposal contemplated dissolving California Metrics and merging the joint venture and
equal partnership with Brown and Andreatta into a new company that would be incorporated in
Florida where Andreatta had recently moved. Andreatta proposed that Andreatta and Brown
would be 50/50 partners in this corporation. Specifically, in an email dated September 3, 2015,
Andreatta wrote that “we discussed and agreed that we would [make certain reimbursements]...
to assure we have equivalence moving into the new year and within our new corporate
structure.” Additionally, Andrea wrote that “this will allow us to go into our first year ... as equal
partners.” A true and correct copy of this email is attached as Exhibit B.
Brown accepted these terms, and the agreed upon distributions were made to Andreatta at the
end of 2015. As of 2016, Andreatta and Brown were engaged in a joint venture to develop and
monetize the various medical applications they had been working on together for
years. Consistent with the agreement that Andreatta and Brown would be “equal partners,”
Andreatta and Brown agreed to exercise joint control over the enterprise and its assets, and each
owned an equal interest in the property and subject matter of the venture. Andreatta and Brown
had an equal right to share in the profits and any losses resulting from the venture.
On May 16, 2016, Brown and Andreatta incorporated the Florida corporation, Metrics Medicus,
Inc. Brown served as the Incorporator. The Articles of Incorporation are attached hereto as
Exhibit C. Brown and Andreatta transferred all assets and property of their joint venture to
Metrics. With the consent of all relevant parties, California Metrics was dissolved.
The Incorporation of Metrics
In the Articles of Incorporation of Metrics, Andreatta was appointed as the Chief Innovation
Officer and a Director of Metrics. Brown was appointed as the Chief Medical Officer and a
Director of Metrics. Brown was the sole Incorporator and Andreatta was named as Metrics'
Registered Agent. To start Metrics, Andreatta and Brown transferred assets and property from
their joint venture to Metrics.
Consistent with their agreement, Brown and Andreatta were and are equal owners of Metrics,
and they exercised equal control as 50/50 owners and 50/50 directors of Metrics. However, no
shares were ever issued in Metrics, no shareholder agreement was executed, and no distributions
were made to either Andreatta or Brown. Both Andreatta and Brown continued to contribute
their time, expertise, skill, and labor to Metrics. In addition, both Andreatta and Brown made
additional monetary contributions in the form of $20,000 each.
The Intellectual Property
As of August, 2016, Brown began serving in the additional role of CEO of Metrics at the request
of Andreatta. As part of his role as CEO, Brown was tasked with managing the acquisition of
patent rights for Metrics' intellectual property. Andreatta and Brown, through their joint venture
and as part of Metrics, had invented a product (the “CareAssess Product”) which consisted of (1)
the CareAssess platform and (2) various data files, called “assessment instruments” that would
be used on the platform.
The CareAssess Product is designed to allow medical providers to conduct objective real-time
quality assessments of different medical procedures. The CareAssess platform consists of a smart
phone application connected to a back-end web portal and database platform. The assessment
instruments are data files describing the various steps and standard of care for certain medical
procedures. The CareAssess platform database hosts a library of the assessment instruments for
use in the smart phone application. This combined CareAssess Product allows healthcare
providers to download assessment instruments to the CareAssess application on their phone. The
providers then used the application to conduct objective quality assessments of medical
procedures in real time. The variety and completeness of the assessment instruments available
for use on the CareAssess platform is essential to the marketability of the entire CareAssess
Product.
In 2017 and early 2018, Andreatta primarily worked on entering the assessment instruments into
the CareAssess platform, while Brown and two contract employees of Metrics primarily worked
on other aspects of the CareAssess Product, including de-bugging the application and supporting
demonstrations to potential customers. Brown was also tasked with managing the marketing and
sales strategy aspects of Metrics, including marketing and sales related to the CareAssess
Product. In that role, Brown conducted a number of significant demonstrations to hospitals,
individuals in the graduate medical education and nursing education space, and other interested
companies.
Brown, with the consent of Andreatta, also retained the DLA Piper firm to apply for a patent for
Metrics for the CareAssess Product. As part of the patent application process, Andreatta and
Brown each assigned any individual rights they had over the CareAssess platform to Metrics. A
true and correct copy of this assignment is attached as Exhibit D. The final patent application
was submitted on October 2, 2017. The patent was initially rejected, but Metrics received a
Notice of Allowance on May 8, 2018, and Patent No. 10,026,052 was issued on July 17, 2018
(the “Patent”). A copy of the Patent is attached as Exhibit E. The CareAssess Product, including
the Patent, is Metrics' most valuable asset.
Andreatta's Unauthorized Actions
On May 8, 2018, Metrics received notification that the full patent application was accepted. At
this point, Metrics had 90 days to submit a dependent patent application for the library of
assessment instruments. This had always been the plan for the patent for the CareAssess Product,
and Andreatta had agreed to this on multiple occasions. However, once the notice was received,
Andreatta refused to submit the dependent patent application and instead claimed she
individually owned the assessment instruments entered into the Metrics CareAssess platform.
This prevented Metrics from properly completing its patent over the CareAssess Product.
Then, starting in mid-May, Andreatta began taking actions without the consent or consultation of
Brown in violation of the corporate structure, as well as the 50/50 equitable ownership
agreement. Andreatta began deleting and removing mass amounts of files and documents from
the Metrics Dropbox, which contains the corporation's official records and proprietary
documents. Andreatta also altered the Metrics website to redirect all sales inquiries, which
formerly went to Brown, to a contractor for Metrics that has assisted Andreatta with her
conversion of Metrics' assets.
During this time, Andreatta expressed her desire to “dissolve the partnership,” but Brown never
agreed to any of Andreatta's proposals. Andreatta never called a meeting of the board of directors
or the putative shareholders of Metrics, and never prepared a written consent for execution.
Brown never voted for, or provided his written consent to, any proposal for dissolving Metrics.
Instead, Brown agreed to discuss the issue and asked Andreatta to stop making unilateral
operational decisions. In response, Andreatta chose to proceed without authorization and
continued unlawfully transferring assets belonging to Metrics to herself.
On July 10, 2018, Andreatta set up a new limited liability company called Metrics Healthcare,
LLC. On July 13, 2018, without the consent or knowledge of Brown, Andreatta executed an
assignment of the Patent from Metrics to herself, individually. Andreatta submitted the
unauthorized assignment of the Patent to the U.S. Patent Office that same day. A copy of this
unauthorized assignment is attached hereto as Exhibit F. Andreatta paid no compensation to
Metrics for this assignment.
Andreatta then removed Brown's access to the back end web functions for the Metrics website
and the CareAssess platform. Andreatta changed the passwords for several demo accounts
belonging to Metrics. Andreatta also deleted the entire assessment instrument library. Without
the associated assessment instruments, the CareAssess platform is unusable, making it
impossible to conduct any sales demonstrations or actually sell Metrics' most valuable product.
Most recently, since the filing of the Verified Complaint, Andreatta deleted the Metrics website
in its entirety. Brown now has no access to any of the Metrics back-end portal history or the
CareAssess Product. Metrics now has no visibility in the marketplace, and the deletion of the
website will likely confuse current and potential business partners and customers of Metrics.
On July 27, 2018, Brown demanded that Andreatta cease her unauthorized activities and return
the property of Metrics. Andreatta failed to do so, and instead completed her looting of Metrics
by draining Metrics' Wells Fargo corporate account and then Filing an unauthorized dissolution
of Metrics with the Florida Secretary of State. A true and correct copy of the Articles of
Dissolution are attached hereto as Exhibit G.
Notably, despite the fact that the dissolution form warns that submitting false information in a
document to the Department of State constitutes a third degree felony, Andreatta falsely claims
that the “dissolution was approved by the shareholders” and the “number of votes cast for
dissolution was sufficient for approval.” (Id.) These statements are objectively, categorically
false. Metrics has no shareholders because shares were never issued to anyone. Further, the
beneficial shareholders and owners are Andreatta and Brown. Andreatta never called or
conducted a meeting to vote on dissolving Metrics. Also in the Articles of Dissolution, Andreatta
claimed that the “company does not have sufficient assets to remain active.” (Id.) If this
statement is true, it is because Andreatta completed her theft of all of the assets of Metrics before
she submitted the fraudulent Articles of Dissolution with the Florida Secretary of State.
Current Status
On August 1, 2018, Brown again made clear to Andreatta that he did not agree to dissolve
Metrics and again demanded that she return the assets she removed from Metrics. Specifically,
Brown demanded that Andreatta join him in taking the actions necessary to remedy the
unauthorized transfer of corporate assets and the unauthorized filing of articles of dissolution.
Brown also demanded that Andreatta join him in calling a meeting of the board of directors
and/or execute a written consent to formally issue equal shares in Metrics to Brown and
Andreatta. Andreatta affirmatively refused these demands, leaving Brown with no option other
than filing suit to protect his own rights as a 50% owner of Metrics, and to protect Metrics from
Andreatta's unauthorized attempts to loot and then dissolve the corporation.
Metrics continues to have outstanding obligations to third parties and active contracts and
business relationships that are now in jeopardy due to Andreatta's unauthorized actions.
Andreatta's actions have prevented Metrics from performing trials that were arranged for
potential customers, including a trial for Duke University. Most urgently, Brown has been
working on a deal for Metrics with the Center for Medical Simulation (“CMS”) in Boston that
includes a CareAssess license. CMS has committed verbally and in writing to a deal, but
Andreatta's actions currently prevent Brown from completing the deal. This will result in a loss
of revenue to Metrics, as well as the loss of future business that could be developed with CMS's
potential network of users. Finally, Metrics' and Brown's inability to follow through harms their
professional reputations and goodwill in the industry.
Metrics was also working on deal with UF Health Jacksonville for the Department of Orthopedic
Surgery. Metrics' contact at UF Health Jacksonville is Andreatta's significant other, Paul
Dougherty, who is the chair of orthopedic surgery. Andreatta pursued a business deal with UF
Health Jacksonville, and Metrics developed a library of assessment instruments specific for its
needs. In December 2017, Metrics invoiced UF Health Jacksonville $13,100 for this work. While
UF Health Jacksonville initially indicated payment was merely delayed, Brown was recently
informed that the Metrics invoice will not be paid. Because Andreatta removed Brown's access
to all the accounts, Brown cannot confirm whether UF Health Jacksonville is using the
CareAssess platform through Andreatta's new company or otherwise. This was a significant
business opportunity that Metrics is currently losing because of Andreatta's actions.
Finally, for several years Metrics had, through the joint efforts of Andreatta and Brown, pursued
potential business opportunities with CAE Healthcare in Sarasota, Florida. Brown began
developing the relationship with CAE Healthcare before joining the joint venture and California
Metrics business in 2013. Over the years, Andreatta and Brown continued to foster this
relationship, including by periodically meeting with CAE Healthcare. At all of these meetings,
Brown and Andreatta presented as a team on behalf of Metrics. Recently, in March of 2018,
CAE Healthcare expressed interest in the concept of exploring a new project, and both Metrics
(including both Brown and Andreatta) and CAE Healthcare appeared to be on board. Then,
without prior notice to Brown, Andreatta abruptly refused to work on the CAE deal and instead
put her significant other, Dougherty, directly in touch with CAE Healthcare. CAE Healthcare
was Metrics' most significant strategic partnership, and Andreatta's actions are destroying
Metrics' ability to pursue this relationship. Instead, it appears that Andreatta may be pursuing this
opportunity for herself or her new company.
LEGAL STANDARD
“The purpose of a temporary injunction is to preserve the status quo until a final hearing may be
held and the dispute resolved.”  Bailey v. Christo, 453 So. 2d 1134, 1137 (Fla. 1st DCA 1984).
The status quo to be preserved is the “last peaceable noncontested condition that preceded the
controversy.” Id. “Generally, to demonstrate that a temporary injunction is warranted, a
party must plead and establish four elements: (1) the likelihood of irreparable [injury], (2)
the unavailability of an adequate remedy at law, (3) a substantial likelihood of success on
the merits, and (4) that a temporary injunction will serve the public
interest.” DePuy  Orthopaedics, Inc. v.Waxman, 95 So. 3d 928, 938 (Fla. 1st DCA 2012).
“The granting of a temporary injunction rests in the trial court's sound discretion, guided by
established rules and principles of equity jurisprudence in view of the facts of the particular
case.”  Bailey, 453 So. 2d at 1137.
LEGAL ARGUMENT
1. Brown and Metrics2 will suffer irreparable harm unless the temporary injunction issues.
Brown and Metrics will suffer irreparable harm unless a temporary injunction issues. Andreatta
has converted irreplaceable assets of the corporation, including the Patent and other intellectual
property, she has filed fraudulent documents to dissolve Metrics, and she has taken down the
Metrics website and converted all of its remaining assets. Andreatta has essentially ceased the
operations of Metrics without any legal authority to do so. Metrics is currently unable to operate
and its business and goodwill are being destroyed.
If Andreatta's actions are not immediately corrected, Metrics will likely lose all reputation and
goodwill, and will never be able to operate again as a going concern. The interference with the
“day to day operation[s] of [a] business” is sufficient to show irreparable harm. Zuckennan v.
Prof'l Writers of Florida, Inc., 398 So. 2d 870, 872 (Fla. 4th DCA 1981). Andreatta's actions do
much more than interfere with the “day to day” operations of Metrics — she has made it
impossible for Metrics to operate. This is sufficient to show that an injunction is needed to avoid
irreparable harm under Florida law.
2. Brown and Metrics have no adequate remedy at law.
Brown and Metrics also have no adequate remedy at law because the harm they are suffering
cannot be redressed solely by money damages, and it is impossible to quantify with any degree
of certainty the harm inflicted by Andreatta's unlawful acts, especially because Andreatta's
breaches will be continuing in nature. Andreatta's improper transfer of the Patent has already
created a cloud on the Patent's title, and Andreatta may, at this very moment, be pursuing new
business with the Patent and/or could license the Patent to another party, further damaging
Metrics and jeopardizing its rights. Metrics is also suffering daily damage to its goodwill and
business relationships. Further, it is not clear how Andreatta's actions in “dissolving” Metrics
will otherwise harm Metrics, or even cause Brown to lose the protection of the corporate form.
Nothing short of an injunction can stop this harm. See Zuckerman, 398 So. 2d at 872 (affirming
finding that there was no adequate remedy at law for theft of corporate documents that prevented
day-to-day operation of company); Lefebvre v. Weiser, 967 So. 2d 405, 406 (Fla. 3d DCA
2007) (affirming grant of temporary injunction because loss of client goodwill was basis for
finding plaintiff had no adequate remedy at law);  Fountainebleau Hotel Corp. v. Kaplan, 108
So. 2d 503, 505 (Fla. 3d DCA 1959) (“The proof of damages for [a violation of the provision]
could be extremely difficult as the doctor may never know of the requests for medical attention
which were referred elsewhere.”). Brown has therefore established that Brown and Metrics lack
an adequate remedy at law.
3. There is a substantial likelihood that Brown and Metrics will succeed on the merits.
“A substantial likelihood of success on the merits is shown if good reasons for anticipating that
result are demonstrated.” City of Jacksonville v. Naegele Outdoor Advert. Co., 634 So. 2d 750,
753 (1st DCA 1994). There is good reason for anticipating that Brown and Metrics will succeed
on the merits. Andreatta's improper transfer of the Patent to herself, and her filing of false
Articles of Dissolution is alone sufficient to show that Andreatta has converted assets of Metrics
and breached her fiduciary duties to both Brown and Metrics. As only one of two officers and
directors of Metrics, Andreatta did not have the authority to take these actions, or any of the
other actions she has taken to steal or destroy the property of Metrics. Her actions are
unauthorized and blatantly unlawful. This element is easily met.
4. A temporary injunction will serve the public interest.
Here, a temporary injunction will serve the public interest. The public has an interest in
preventing parties from looting corporations in violation of the corporate form and Florida law.
The public also has an interest in preventing the filing of false documents with federal and state
agencies. If Andreatta's actions continue unimpeded, Metrics and Brown will never be able to
remedy her wrongs, and her actions will have succeeded despite the fact that she had no legal
authority to take those actions. This result is not just inequitable — it puts the public's trust in the
protection of these laws and public records at risk. There is no indication that any innocent third
party would be harmed through the entry of an injunction. Thus, an injunction is in the public
interest.
PROPER AMOUNT OF INJUNCTION BOND
Brown suggests a bond amount not to exceed $25,000, which Brown is prepared to immediately
post. A temporary injunction is a provisional remedy only.
CONCLUSION
A return to the status quo would merely require Andreatta to return the property of Metrics and
revoke her unauthorized conversion of assets and fraudulent public filings. This Court will
ultimately determine the parties' ownership rights and whether Metrics should eventually be
dissolved due to disagreement among the owners. But that process must happen as it is meant to
happen — through agreement of the parties or through order of this Court. Andreatta's “race” to
steal the assets and shut down Metrics in order to “win” the dispute should not be tolerated or
rewarded. While this dispute is pending, Metrics should be restored to its original state and
Andreatta should be prohibited from taking further action on behalf of Metrics.
REQUEST FOR RELIEF
For the reasons stated above, Brown respectfully requests that this Court issue a temporary
injunction:
A. Revoking the assignment of the Patent and the Articles of Dissolution and directing Brown
and Andreatta to sign any necessary documents to effectuate those revocations and the
reinstatement of Metrics.
B. Requiring Andreatta to take all actions necessary to restore the status of Metrics to its pre-
dispute state, including by:
i. Accounting for all assets and property of Metrics, including the monetary funds removed from
the Metrics Wells Fargo account, and the current location and state of those assets;
ii. Re-instating Brown's access to all company websites, technology, and accounts;
iii. Returning all documents and records of Metrics to the Metrics Dropbox account;
iv. Restoring the Metrics website to its prior state;
v. Returning all elements of the CareAssess Product, including the CareAssess platform and the
assessment instruments to Metrics.
C. Enjoining Metrics, Pamela Andreatta, Metrics Healthcare, LLC, and all those in active concert
with them or with knowledge of the injunction from directly, or indirectly, using, or agreeing to
use, the CareAssess Product, including the Patent, for any business venture or otherwise, unless
such use is for the benefit of Metrics and has been agreed to in writing by Brown or approved by
this Court.
D. Enjoining Metrics, Pamela Andreatta, Metrics Healthcare, LLC, and all those in active
concert with them or with knowledge of the injunction from usurping any business opportunity
of Metrics or taking any action which could damage a business relationship of Metrics.
E. Removing Pamela Andreatta as an officer and director of Metrics and enjoining Pamela
Andreatta from taking any action on behalf of Metrics without the written consent of Brown or
with prior authorization of this Court.
Dated: August 10, 2018
Respectfully submitted,
/s/ David L. Luikart