[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 09-11677                 JANUARY 22, 2010
                       _______________________               JOHN LEY
                                                           ACTING CLERK
                D. C. Docket No. 08-00146-CV-3-RS/EMT

W.D. SALES AND BROKERAGE LLC,
a Florida Limited Liability Company,
EMERALD COAST BROKERAGE, INC.,


                                                         Plaintiffs-Appellants,

                                  versus

BARNHILL’S BUFFET OF TENNESSEE, INC.,
d.b.a. Barnhill’s Buffet, Inc.,
DYNAMIC MANAGEMENT COMPANY, LLC,
EMPAD CONSULTING, INC.,
GARY SHARP,
ROBERT LANGFORD,
CRAIG BARBER,


                                                        Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      _________________________
                            (January 22, 2010)
Before EDMONDSON, BARKETT and BALDOCK,* Circuit Judges.

PER CURIAM:

       W.D. Sales and Brokerage, LLC and Emerald Coast Brokerage, Inc.,

wholesale food brokers, (collectively “the Brokers”), appeal from the dismissal

pursuant to Federal Rule of Civil Procedure 12(b)(6) of their amended complaints.1

The Brokers alleged that Dynamic Management Company LLC, Empad

Consulting, Inc., Gary Sharp, and Craig Barber, all connected to Barnhill’s Buffet

of Tennessee, Inc., (collectively “Barnhill’s”),2 tortiously interfered with the Food

Brokers’s business relationships.

       The facts giving rise to the complaint are as follows: The Brokers earned

commissions by representing several food suppliers (the “Suppliers”) in selling

their food products. Barnhill’s Buffet operates a chain of restaurants and was a

customer of the Suppliers, sometimes purchasing food products from the Suppliers



       *
         Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth Circuit, sitting
by designation.
       1
          W.D. Sales and Emerald Coast originally filed separate complaints in state court in
Florida, which were consolidated and removed to federal court based on the diversity of the
parties.
       2
          Each of the defendants, who are alleged to be either an agent or officer of Barnhill’s,
are, because of this status, considered a party to the business relationship. See Richard Bertram,
Inc. v. Sterling Bank & Trust, 

(Fla. Dist Ct. App. 2002) (an agent of a party to a
business relationship, acting within the scope of his agency, cannot be considered a separate
entity for purposes of tortious interference, except where the agent has a personal stake separate
from the principal).

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via the Brokers. When Empad Consulting was hired by Barnhill’s to provide food

consulting services, it contacted the Suppliers and notified them that Barnhill’s

would no longer purchase their food products unless Barnhill’s could make the

purchases directly, without the involvement of the Brokers. The Suppliers

thereafter sold food products to Barnhill’s directly, and the Brokers were no longer

involved in these transactions. The Brokers claim that the actions of the Barnhill’s

defendants constitute tortious interference with their business relationship with the

Suppliers. We disagree.

      Under Florida law, which we apply in this diversity case, in order to state a

claim upon which relief can be granted for tortious interference with a business

relationship, the Brokers were required to allege the following: “(1) the existence

of a business relationship . . . (2) knowledge of the relationship on the part of the

defendant; (3) an intentional and unjustified interference with the relationship by

the defendant; and (4) damage to the plaintiff as a result of the breach of the

relationship.” Ethan Allen, Inc. v. Georgetown Manor, Inc., 

, 814

(Fla.1994) (citation omitted). The only disputed element in this appeal is the third

one: whether the defendants intentionally and unjustifiably interfered with the

relationship between the Brokers and the Suppliers.

      With regard to the third element, Florida appellate courts have explained that



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“[f]or the interference to be unjustified, the interfering defendant must be a third

party, a stranger to the business relationship.” Salit v. Ruden, McClosky, Smith,

Schuster & Russell, P.A., 

, 386 (Fla. Dist. Ct. App. 1999) (citations

omitted); see also Genet Co. v. Anheuser-Busch, Inc., 

, 684 (Fla.

Dist. Ct. App. 1986) (“[A] cause of action for tortious interference does not exist

against one who is himself a party to the business relationship allegedly interfered

with.”). Moreover, “[t]he tort of willful interference with a business relationship

does not exist where the defendant was the source of the business opportunity

allegedly interfered with.” 

(citation omitted). More

recently, Florida’s Fourth District Court of Appeal explained that a “defendant is

not a ‘stranger’ to a business relationship if the defendant has any beneficial or

economic interest in, or control over, that relationship.” Palm Beach County

Health Care Dist. v. Prof’l Med. Educ., Inc., 

, 1094 (Fla. Dist. Ct.

App. 2009) (quotation marks and citations omitted).

      The Brokers attempt to avoid these holdings by arguing that the district court

misconstrued which business relationship had been subject to tortious interference.

They do not dispute that Barnhill’s was a party to the relationship between them

and the Suppliers. The Brokers, however, assert that they had a separate business

relationship with the Suppliers concerning the Suppliers’s payment of commissions



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to the Brokers for the sales of food products to Barnhill’s. This is a specious

argument. The relationship involving the Brokers’s representation of the Suppliers

with the sales of food products to Barnhill’s is not a separate and distinct business

relationship from the Suppliers’s payment of commissions to the Brokers for the

food sales to Barnhill’s. Payment for work done within a business relationship is

simply one aspect of that entire business relationship. Moreover, in this case

because the commissions paid by the Suppliers to the Brokers for its representation

in food sales to Barnhill’s would not have existed absent Barnhill’s agreement to

purchase and pay for the Suppliers’s food products, it simply is not plausible to

separate the relationship involving the food sales from the relationship involving

the payment of commissions for the food sales.

      As the Brokers concede, the defendants were parties to the relationship

between them and the Suppliers in the sales of the Suppliers’s food products to

Barnhill’s and we find that this was the only business relationship at issue. Thus,

we AFFIRM the district court’s dismissal of the amended complaint as to

defendants Dynamic Management, Empad, Sharp and Barber.

      AFFIRMED.




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