MULTIMODAL DEVELOPMENT GROUP, LLC v. CHEMONICS INTERNATIONAL INC .

Filing 21

ORDER granting 8 Defendant's Motion to Dismiss for Lack of Personal Jurisdiction. This action is TRANSFERRED in its entirety to the United States District Court for the District of Columbia. All other pending motions are DENIED as moot. Closin g Case. Signed by Judge Darrin P. Gayles on 5/31/2016. (zvr) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69. [Transferred from Florida Southern on 6/1/2016.]

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-20446-CIV-GAYLES
MULTIMODAL DEVELOPMENT
GROUP, LLC,
Plaintiff,
v.
CHEMONICS INTERNATIONAL, INC.,
Defendants.
/
ORDER
THIS CAUSE comes before the Court on Defendant Chemonics International, Inc.’s
(“Chemonics”) Motion to Dismiss for Lack of Personal Jurisdiction or, in the Alternative, to
Transfer Venue [ECF No. 8]. Plaintiff Multimodal Development Group, LLC (“Multimodal”),
originally filed an action in Florida state court against Chemonics on January 8, 2016, alleging
various contractual and noncontractual claims. On February 8, 2016, Chemonics removed the
case to this Court, pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, and preserved its right to challenge the personal jurisdiction of Florida courts. [ECF No. 1 at 1 & n.1]. Chemonics then filed
the instant motion on February 16, 2016. To date, Multimodal has not responded to the motion.1
A federal court sitting in diversity undertakes a two-step inquiry in determining whether
personal jurisdiction over a nonresident defendant exists. First, the court must determine whether
the exercise of jurisdiction is appropriate under Florida’s long-arm statute. Mutual Serv. Ins. Co.
v. Frit Indus., Inc., 358 F.3d 1312, 1319 (11th Cir. 2004). Second, the court must determine
whether personal jurisdiction over the defendant violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Id.
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That said, Multimodal has participated in the litigation. It conferred with Chemonics in filing the Joint Scheduling
Report [ECF No. 13], and it filed a response to Chemonics’ pending motion to compel arbitration [ECF No. 18].

“A plaintiff seeking to establish personal jurisdiction over a nonresident defendant ‘bears
the initial burden of alleging in the complaint sufficient facts to make out a prima facie case of
jurisdiction.’” Louis Vuitton Malletier, S.A. v. Mosseri, 436 F.3d 1339, 1350 (11th Cir. 2013)
(quoting United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009)). Multimodal’s
allegations in the Complaint regarding jurisdiction are as follows: (1) “This Court has jurisdiction
over the Defendant because it (a) breached a contract in the State of Florida by failing to perform
acts required by the contract to be performed in the State of Florida, and (b) engaged in substantial
and not isolated activity within the State of Florida”; and (2) “All payments made by the Defendant
with regard to the [subject of the contract(s)] were made to the Plaintiff. These payments were
made to the Plaintiff in Florida.” Compl. ¶¶ 4, 27. The Court assumes arguendo for the purposes
of this discussion that Multimodal has alleged sufficient facts to satisfy its prima facie burden.
Where a defendant challenges jurisdiction in a motion to dismiss pursuant to Rule
12(b)(2), as Chemonics does here, and submits evidence in support of its position, “the burden
traditionally shifts back to the plaintiff to produce evidence supporting jurisdiction.” Meier ex
rel. Meier v. Sun Int’l Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002).2 According to the Declaration of Christopher R. Smith, Senior Vice President of Chemonics, Chemonics is incorporated in
Delaware and has its principal place of business in the District of Columbia. Smith Decl. ¶¶ 2-3.
Chemonics does not have Florida operations, offices, or employees; it does not own any real or
personal property in Florida; it does not have any bank accounts in Florida; it is not registered to
do business in Florida; it has no agent for service of process in Florida; it pays no taxes in Florida;
and it does not maintain a mailing address or telephone number in Florida. Id. ¶ 4.

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The burden “does not shift back to the plaintiff,” however, “when ‘the defendant’s affidavits contain only conclusory assertions that the defendant is not subject to jurisdiction.’” Louis Vuitton, 436 F.3d at 1350 (quoting
Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino, 447 F.3d 1357, 1360 (11th Cir. 2006)).

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On January 12, 2010, the nation of Haiti suffered catastrophic losses resulting from a
massive earthquake. Subsequently, the United States expended hundreds of millions of dollars to
aid in the recovery, and Chemonics provided assistance under United States Agency for International Development (“USAID”) Contract No. DOT-I-00-08-00033-00. Id. ¶ 5. In connection
with this contract, Chemonics solicited proposals for the design, construction, and furnishing of
temporary assembly and administrative facilities for use by the Haitian Parliament in Port-auPrince, Haiti. Id. ¶ 6. Thereafter, a Haitian entity, Jeanty & Co., doing business as Tempo Construction (“Tempo”), an entity with its principal place of business in Petion-Ville, Haiti, responded
to the solicitation. Id. ¶ 7. Multimodal alleges that Tempo was a joint venture between it and
Jeanty & Co. See Compl. ¶ 11. Tempo was awarded Fixed Price Subcontract No. CHE145TEMPO Contrusction-01 (“Subcontract 1”) on January 10, 2011, which concerned the construction of an office assembly and two administrative buildings to be used by members of Parliament
and other staff of the legislative branch. Smith Decl ¶ 7; see also Compl. Ex. A. All construction
work contemplated by Subcontract 1 was performed on land owned by the Haitian government
in Haiti. Smith Decl. ¶ 7.
On August 1, 2011, Chemonics awarded a second subcontract to Tempo, Fixed Price
Subcontract No. PAP006-TEMPO Construction-01 (“Subcontract 2”), in order to complete the
construction of the office assembly and two administrative buildings in Haiti. Id. ¶ 8; see also
Compl. Ex. B. All construction work contemplated by Subcontract 2 was also performed on land
owned by the Haitian government in Haiti. See Smith Decl. ¶ 8. Chemonics did not come to Florida
at any point prior to or after finalization of the Subcontracts, and all meetings between Tempo
and Chemonics during execution and performance of the Subcontracts occurred via email, via
telephone, or in person in Haiti. Id. ¶ 9. The Subcontracts did not provide a place for payment,
stating only that Chemonics would pay the Subcontract price as stated in Haitian Gourdes. Id. ¶ 10.

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The Subcontracts specified that Tempo should submit invoices to Chemonics for payment, and
Chemonics would tender payment (in gourdes) to the account specified in Tempo’s invoice. Id.
Over the course of performance, Tempo submitted several invoices to Chemonics, each
of which identified accounts to which Tempo requested Chemonics make payment. Id. ¶ 11; see
also Smith Decl. Ex. C. Chemonics issued some payments via wire transfer and others via check,
depending on the instructions provided on Tempo’s invoices. Smith Decl. ¶ 12. Although at least
some of those accounts to which Chemonics issued payment were located in Florida, no payments
were made directly to “Multimodal Development Group, LLC.” Id.
Based on its review of the foregoing, the Court finds that Chemonics has submitted sufficient evidence to satisfy its burden to show that the exercise of jurisdiction here is not appropriate
under Florida’s long-arm statute. A person submits themselves to the jurisdiction of Florida courts
by (1) operating, conducting, engaging in, or carrying on a business or business venture in this
state or having an office or agency in this state; (2) committing a tortious act within this state; or
(3) owning, using, possessing, or holding a mortgage or other lien on any real property in this
state. Fla. Stat. § 48.193(1)(a)(1)–(3). Additionally, a “defendant who is engaged in substantial
and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or
otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises
from that activity.” Id. § 48.193(2). Chemonics’ submissions show that it falls under none of
these categories. And while it is true that “[u]nder Florida law, allegations by a plaintiff that a
defendant breached a contract by not making payments in Florida, as required by contract, are
sufficient to bring the defendant within Florida’s long-arm jurisdiction,” Pac. Coral Shrimp v.
Bryant Fisheries, 844 F. Supp. 1546, 1548-49 (S.D. Fla. 1994), where there is “no evidence that
the contract provided for payments to be made in the State of Florida such that there would be a
breach in Florida,” the long-arm statute is not satisfied, Diaz-Verson v. Aflac Inc., No. 11-0852,

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2012 WL 398353, at *5 (M.D. Fla. Jan. 11, 2012) (emphasis in original), report and recommendation adopted, 2012 WL 398329 (M.D. Fla. Feb. 8, 2012). The Subcontracts themselves do not
designate any place for payment, let alone Florida specifically. The Court is thus persuaded that
Chemonics’ evidence has shown the lack of ties Chemonics and this litigation have to Florida,
sufficiently to establish that it is not subject to jurisdiction under the Florida long-arm statute.
Even if it were, Multimodal cannot establish that jurisdiction over Chemonics in Florida
comports with due process. The underlying test requires for due process that a defendant “have
certain minimum contacts with [the forum state] such that the maintenance of the suit does not
offend ‘traditional notions of fair play and substantial justice.’” Int’l Shoe Co. v. Washington,
326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). The minimum
contacts requirement is not satisfied by a mere showing that a Florida party entered into a contract
with an out-of-state party. Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985). “Likewise, a
complaint alleging that the act of payment was to be performed in Florida is not sufficient to
meet the minimum contacts requirement.” Quality Christmas Trees Co. v. Florico Foliage, Inc.,
689 So. 2d 1222, 1224 (Fla. 5th DCA 1997). Thus, standing alone, Multimodal’s allegation that
Chemonics failed to make payment in Florida “is insufficient to satisfy the constitutional requirement of minimum contacts.” Id. In sum, the Court finds that Chemonics has satisfied its burden
to support its jurisdictional challenge.
When a defendant satisfies its burden, the plaintiff, in order to justify the exercise of
jurisdiction, must “substantiate the jurisdictional allegations in the complaint by affidavits or other
competent proof, and not merely reiterate the factual allegations in the complaint.” Polskie Linie
Oceaniczne v. Seasafe Transport A/S, 795 F.2d 968, 972 (11th Cir. 1986). Given that Multimodal
has not responded to Chemonics’ motion, all it has to rely on are the allegations in its Complaint,

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which it explicitly cannot do. Therefore, the Court concludes that Chemonics is not subject to
personal jurisdiction in Florida.
If a district court lacks jurisdiction over an action, “the court shall, if it is in the interest of
justice, transfer such action . . . to any other such court in which the action . . . could have been
brought at the time it was filed.” 28 U.S.C. § 1631. In other words, transfer is appropriate where
(1) jurisdiction is wanting in the transferor court, (2) transfer is in the interest of justice, and (3) the
action could have been brought in the transferee court at the time it was filed in the transferor
court. Farber v. Tennant Truck Lines, Inc., 84 F. Supp. 3d 421, 435 (E.D. Pa. 2015); accord Clay
v. AIG Aerospace Ins. Servs., Inc., 61 F. Supp. 3d 1255, 1271-72 (M.D. Fla. 2014); Wynn v.
Davison Design & Dev., Inc., No. 09-0446, 2009 WL 4610924, at *5 (N.D. Fla. Dec. 1, 2009).
The Court finds that it is in the interests of justice to transfer this matter to an appropriate district.
Upon consideration, the Court concludes that the most appropriate transferee district is the U.S.
District Court for the District of Columbia. Chemonics has its principal place of business in that
district, and it requested that the Court transfer venue to that district in the event that the Court
denied its motion to dismiss for lack of personal jurisdiction. Accordingly, it is
ORDERED AND ADJUDGED the Defendant’s motion to dismiss [ECF No. 8] is
GRANTED for lack of personal jurisdiction. This action is TRANSFERRED in its entirety to
the United States District Court for the District of Columbia.
This action is CLOSED and all other pending motions are DENIED AS MOOT.
DONE AND ORDERED in Chambers at Miami, Florida, this 31st day of May, 2016.

_________________________________
DARRIN P. GAYLES
UNITED STATES DISTRICT JUDGE

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