Filing # 194875634 E-Filed 03/26/2024 06:53:38 PM IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA, FLORIDA STATE UNIVI BOARD OF TRUSTEES, ERSITY Plaintiff, v, CASE NO. 2023-CA-2860 ATLANTIC COAST CONFERENCE, Defendant. ATLANTIC COAST CONFERENCES REPLY IN SUPPORT OF MOTION TO DISMISS OR, ATIVELY. TO STAY A. FSU CANNOT OVERCOME THE PRIORITY PRINCIPLE Florida’s principle of priority requires a stay of this subsequent and similar action, absent exceptional circumstances. See Reliable Restoration, LLC v. Panama Commons, L.P., 313 So. 3d 1207, 1209-10 (Fla. Ist DCA 2021). FSU does not dispute that (1) the same parties are litigating over the same contracts in both North Carolina and Fl ind (2) North Carolina has priority because jurisdiction first attached there. Resp. at 17-19. Instead, FSU asserts a novel variation of “exceptional circumstances,” id., based on attacks against the North Carolina action and assertions of sovereign immunity (which it waived by entering into the authorized contracts) that are appropriate for only the North Carolina court to resolve. Indeed, FSU has already raised these arguments in North Carolina, the court heard argument on March 22, and its decision is imminent. This Court cannot reach those arguments without violating the principle of priority. Florida law also precludes this Court from deciding the North Carolina court’s jurisdiction. See Byrne v. Brown, 23 So. 877, 878 (Fla. 1898) (“[I]t would be a strange and an anomalous rule oflaw that would permit [the second] court, though of concurrent jurisdiction, to withdraw the case and the parties from the jurisdiction of the [first] court.”). Nor can FSU skirt the principle of priority by characterizing the North Carolina action as ‘a forbidden ‘anticipatory filing.”” Resp. at 17, FSU offers no Florida authority in support of this argument, see id. at 17-19 (relying entirely on out-of-state and federal cases), and Florida law contradicts FSU’s position, Recently, a Florida trial court denied a motion to stay a second. led action despite a first-filed action in federal court it criticized as an “anticipatory ing” that “should not divest [the Florida plaintiff] of his choice of forum.” Cyrulnik v. Roche, No. 2021- 005837-CA-44, 2021 WL 8998465, at *2 (Fla. 11th Cir. Ct, July 27, 2021). The Third District quashed the trial court’s order, holding that the “extraordinary circumstances” exception was not supported by the record, either on the bas of undue delay in the federal action “or on any other basis,” including the “anticipatory filing” criticism. Roche v. Cyrulnik, 337 So. 34 86, 87-89 (Fla. 3d DCA 2021). The same reasoning applies here. B, THE AMENDED COMPLAIN MUST BE DISMISSED With its motion to stay, the ACC also moved to dismiss the Amended Complaint to assert and not waive its defenses under Florida Rule of Civil Procedure 1.140(b). The ACC stands by its defenses; however, the principle of priority precludes this Court from reaching them. If the Court does reach them, it should dismiss FSU"s Amended Complaint. Personal Jurisdiction, FSU fails to identify any allegations in the Amended Complaint that subject the ACC to personal jurisdiction in Florida under the long-arm statute. See Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989) (explaining the plaintiff’s burden to plead jurisdiction over a nonresident defendant “in the language of the [long-arm] statute,” section 48.193, Florida Statutes). At most, FSU highlights allegations about the general purpose,structure, and activity of the ACC. Resp. at 3-6. But none of the allegations show that the ACC is. “folperating, conducting, engaging in, or carrying on a business or business venture in this state” and that FSU’s causes of action arise from such activity. § 48.193(1)(a)I., Fla. Stat. FSU is required to plead a cognizable basis for personal jurisdiction, but it failed to do so. Venue, FSU incorreetly relies on section 47.011, Florida Statutes, to claim that “venue is proper in any Florida County” for actions against a nonresident. See Resp. at 6. By its terms, scetion 47.011 “shall not apply to actions against nonresidents.” The ACC is undisputedly a nonresident. FSU also failed to allege any act in Leon County supporting venue here. See Pozo v. Roadhouse Grill, Inc., 790 So, 24 1255, 1258 (Fla. 5th DCA 2001). Ripeness. FSU argues that its penalty-related claims for declaratory judgment do not rest upon a contingent, uncertain, and future state of facts but “rest only upon facts that occurred and existed (and are so pleaded) before the FSU Board filed its pleading.” Resp. at 15. Yet, FSU concedes that its Board has yet to consider whether or “when” to withdraw from the ACC. Id. This is the critical fact to create a bona fide, actual, present, practical need for a judicial declaration. Without that fact, the penalty-related claims wrongly seek advisory opinions. Affirmative Defenses. FSU does not contest the ACC's arguments on the affirmative defenses of waiver and quasi-estoppel, but instead wrongly contends that “the Court may not consider affirmative defenses” in ruling on a motion to dismiss, Resp. at 15-16. This is not the law. When ruling on a motion to dismiss, atrial court can consider any affirmative defense that appears “upon the face of a pleading.” Pac. Ins. Co. v. Botetho, 891 So. 2d $87, 590 (Fla, 3d DCA 2004), Regarding the statute of limitations affirmative defense, FSU’s unwillingness to specify which breaches it claims are “recent” and “continuing” and which breaches pre-date the three-year statute of limitations, Resp. at 16, underscores that at least some of FSU’s alleged breaches are time-barred. Moreover, a breach is not “continuin; ply because the supposed injury continues to accumulate; rather, a contractual obligation that arises only once—such as an obligation to negotiate a media ri nts agreement—is only breached (and therefore accrues) upon the initial, alleged failure to perform. Ranucei v. City of Palmetto, 317 So. 34 270, 276 (Fla. 2d DCA 2021); see also Williams v. Blue Cross Blue Shield of N. Carolina, 581 S.E.2d 415, 423 (N.C. 2003) (“A continuing violation is occasioned by continual unlawful a s, not by continual ill effects from an original violation.”). Similarly, a breach of fiduciary duty that derives from a “diset event” is not a continuing tort. Brouwer v. Wyndham Vacation Resorts, Ine., 336 So. 3d 372, 373-74 (Fla. Sth DCA 2022); see also Marzee v. ,, 690 S.E.2d 537, 543 (N.C. App. lure to act was not a “cor 2010) (a fiduciary breach based on one ual unlawful act” despite the “continual ill effects from the original failure”). Most of FSU’s alleged breaches cannot be ‘ongoing” or “continuing” as a matter of law because they derive from the one-time contractual obligations and discreet acts by the Conference in negotiating and executing media rights agreements in 2016 or earlier. Thus, the statute of limitations has expired and FSU has not adequately pleaded that it is tolled All seven counts fail to state a cause of action. FSU’s response does not overcome any of the factual deficiencies identified by the ACC that warrant dismissal of the Amended Complaint. Count I, Restraint of Trade, fails because FSU has not alleged harm to competition itself. Rather, FSU’s allegations—taken as true—contradiet any harm to competition in the defined market, defeating its claim for unreasonable restraint of trade. For Count II, Unenforceable Penalties, FSU only points to allegations related to damages under the ESPN agreements upon a member withdrawal. But those allegations say nothing about the overalldamage to the ACC should a member withdraw, to allege that the Withdrawal Payment is disproportionate. Under Count III, Breach of Contract, FSU only defended four of the ten alleged breaches. Regarding the initiation of the North Carolina action and the ESPN option, the ACC maintains that it complied with the ACC Constitution and Bylaws in all relevant respects. Finally, FSU cannot point to any contractual language for the supposed “duty to always exploit” media rights. As to Count IV, Breach of Fiduciary Duty, FSU wrongly applies Florida law, instead of North Carolina law, without discussing the “significant relationships test,” and any alleged fiduciary duty would have arisen solely from the Grant of Rights and be limited to negotiating the ESPN agreements in 2016 or carlicr. Count V, Frustration of Contractual Purpose, remains meritless, as FSU’s criticisms of the former ACC commissioner are irrelevant to whether certain written agreements have lost all expected value or purpose. FSU’s only defense of Count VI, ela ts is unenforceable “For Several Ott 1g the Grant of Ri Reasons,” is to disavow the consideration apparent on the face of the Grant of Rights, or to label it “false.” But the plain meaning of the Grant of Rights controls and may be the basis for a motion to dismiss. Age of Empire, Inc. v. Ocean Two Condo. Ass'n, Inc., 367 So. 34.1278, 1280 (Fla, 3d DCA 2023). As for Count VII, Unconscionable Penalties, none of FSU’s hodgepodge of charges against the ACC demonstrate procedural unconscionability “in the form of unfair surprise, lack of meaningful choice, and an inequality of bargaining power” or substantive unconscionability through “harsh, one-sided, and oppressive contract terms” at the time of execution, Musselwhite v. Cheshire, 831 $.E.2d 367, 377-78 (N.C. App. 2019). Accordingly, Counts I-VI fail For all these reasons, the Court should stay this case and reserve ruling on the motion to dismiss pending disposition of the North Carolina case.Dated: March 26, 2024 JAMES P. COONEY, IIT* SARAH MOTLEY STONE* PATRICK GRAYSON SPAUGH™ WOMBLE BOND DICKINSON (US) LLP 301 S. College St., Suite 3500 Charlotte, NC 28202 (704) 331-4900 [email protected] Sarah. [email protected] [email protected] *admitted Pro Hac Vice Respectfully submitted, 4/ Alan Lawson ALAN LAWSON FLORIDA BAR NUMBER: 709591 JESSICA SLATTEN FLORIDA BAR NUMBER: 27038 RAYMOND F, TREADWELL FLORIDA BAR NUMBER: 93834 AMBER STONER NUNNALLY. FLORIDA BAR NUMBER: 109281 Rosert E, MINCHIN IIT FLORIDA BAR NUMBER: 1033022 LAWSON HUCK GONZALEZ, PLLC 215 South Monroe Street, Suite 320 Tallahassee, FL 32301 Telephone: 850-825-4334 [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] Counsel for Defendant Atlantic Coast Conference CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the foregoing has been filed via the Florida Courts E-Portal, and a copy of said document has been served via the Florida Courts E- Portal on March 26, 2024, to all counsel of record. (s/Alan Lawson Alan Lawson