Holsapple v. Volumetric Mixers By Strong, Inc.

Filing 27

ORDER granting 25 motion to dismiss. Plaintiff's Amended Complaint (Doc. 9, case number 2:12-cv-355-FtM-UA-SPC) is DISMISSED WITHOUT PREJUDICE. The Parties may conduct jurisdictional discovery for a period of 60 DAYS from the date of this Order. Plaintiff may file a Second Amended Complaint within 10 DAYS after the completion of jurisdictional discovery.. Signed by Judge Roy B. Dalton, Jr. on 3/19/2013. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

JENNIFER HOLSAPPLE, as personal
representative of the estate of ROBERT
JANS, deceased,
Plaintiff,
vs.

Case No. 2:12-cv-473-UA-SPC

STRONG INDUSTRIES, INC. and
VOLUMETRIC MIXERS BY STRONG,
INC.,
Defendants.
ORDER
This cause is before the Court on Defendant Strong Industries, Inc.’s Motion to
Dismiss for Lack of Personal Jurisdiction, filed on August 13, 2012 (Doc. No. 25), and
Plaintiff’s Response in opposition, filed on August 27, 2012 (Doc. No. 26). After a
careful review of the parties’ submissions and the applicable law, the Court finds the
Motion is due to be granted but will permit Plaintiff to conduct jurisdictional discovery for
60 days.
BACKGROUND
Plaintiff Jennifer Holsapple (“Holsapple”), as personal representative of the
estate of Robert Jans, filed two actions in the Circuit Court of the Twentieth Judicial
Circuit in Lee County, Florida, for wrongful death against Strong Industries, Inc. (“Strong
Industries”) and Volumetric Mixers by Strong, Inc. (“Volumetric”).

Both cases were

removed to this Court by Defendants based on diversity jurisdiction.1
This matter arose out of a fatal accident occurring on July 21, 2010. On that
date, Robert Jans (“Jans”), an employee of Arnold Brothers Concrete, Inc. (“Arnold
Brothers”), was using a cement mixer on a truck to pour concrete in the pool and spa
area under construction at a residence located in Lee County, Florida. (Doc. 9 ¶19.)
Jans was operating the auger and discharge port of the operation. (Id. ¶20.) As the
concrete poured into the pool and spa area, Jans used the unguarded ladder to gain
access to the hopper of the cement box assembly in order to facilitate the flow of sand
into the auger. (Id. ¶21.) Shortly after doing so, Jans fell into the unguarded and
unprotected auger assembly, which severed both of his legs. (Id. ¶¶22, 23.) Jans was
removed from the hopper and died soon thereafter. (Id. ¶¶24, 25.)
Plaintiff alleges that the concrete mixer arrived in Florida after employees of JJ
Gunite, Inc., a Florida corporation, drove a truck chassis from Florida to Strong
Industries in Houston, Texas, to purchase the volumetric mixer from Strong Industries,
its parent company, and/or its subsidiaries. (Id. ¶ 10.) Plaintiff alleges that Strong
Industries designed and manufactured the volumetric mixer and affixed the mixer to a
truck chassis for the purpose of mixing, pumping, and pouring concrete. (Id. ¶11.) After
the purchase and installation of the volumetric mixer, the finished truck was driven back
to Florida by employees of JJ Gunite, Inc. Plaintiff asserts that Strong Industries had
knowledge or notice that the finished truck was being purchased by a Florida
corporation for use in the state of Florida. (Id. ¶13.) Thereafter, the subject truck was
sold to Arnold Brothers, which employed Jans at the time of the accident. (Id. ¶14.)
1

The cases (2:12-cv-355-FtM-UA-SPC, 2:12-cv-473-FtM-UA-SPC) were recently
consolidated with all successive filings to be filed under case number 2:12-cv-473-FtMUA-SPC.

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Plaintiff maintains that Strong did not design or equip the hopper or bin with guards to
prevent access to the exposed auger at the bottom of the hopper and bin and that it
designed and equipped the cement box apparatus with an unguarded ladder which
made the exposed hopper, bin, and auger assembly easily accessible. (Id. ¶ 16-17.)
Thus, access to the hopper, bin, and the auger apparatus was not prevented by any
reasonable manner. (Id. ¶18.)
On July 17, 2012, Strong Industries filed a Motion to Dismiss for Lack of Personal
Jurisdiction (Doc. 8), after which Plaintiff filed her Amended Complaint. (Doc. 9.) In her
Amended Complaint, Holsapple, as personal representative of the estate of Robert
Jans, seeks relief for wrongful death sounding in strict liability and negligence against
Defendant Strong. Defendant Strong Industries again filed a motion to dismiss based
on lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2), arguing that the
Court should dismiss the Amended Complaint because Strong Industries lacks sufficient
contacts with the state of Florida to justify a Florida court’s exercise of personal
jurisdiction over it.
DISCUSSION
A. THE LAW OF PERSONAL JURISDICTION
Evidentiary hearings on the issue of personal jurisdiction are at the discretion of
the Court. See Snow v. DirecTV, Inc., 450 F.3d 1314, 1317 (11th Cir. 2006). When the
Court chooses not to conduct an evidentiary hearing on a motion to dismiss for lack of
jurisdiction, the plaintiff must establish a prima facie case of personal jurisdiction over a
non-resident defendant. PVC Windoors, Inc. v. Babbitbay Beach Constr., N.V., 598
F.3d 802, 809 (11th Cir. 2010); Morris v. SSE, Inc., 843 F.2d 489, 492 (11th Cir. 1988).
A prima facie case is established if the plaintiff presents enough evidence to withstand a

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motion for directed verdict. Morris, 843 F.2d at 492. “If a plaintiff pleads sufficient
material facts to establish a basis for personal jurisdiction and a defendant then submits
affidavits controverting those allegations, the burden traditionally shifts back to the
plaintiff to produce evidence supporting jurisdiction, unless those affidavits contain only
conclusory assertions that the defendant is not subject to jurisdiction.” Whitney Info.
Network, Inc. v. Xcentric Venture, LLC, 199 F. App’x 738, 741 (11th Cir. 2006).
“Where the evidence presented by the parties’ affidavits and deposition
testimony conflicts, the [C]ourt must construe all reasonable inferences in favor of the
non-movant plaintiff.”

PVC Windoors, Inc., 598 F.3d at 810 (citation and internal

quotation marks omitted). “With respect to those points of the competing affidavits that
do not conflict, however, ‘the [C]ourt may accept as true the applicable allegations in the
complaint for the purposes of resolving jurisdictional issues....’”

Crowe v. Paragon

Relocation Res., Inc., 506 F. Supp. 2d 1113, 1119 (N.D. Fla. 2007) (citation omitted).
In deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(2), the Court must
engage in a two-part analysis. Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990)
(citation omitted); Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989).
In order to determine whether this Court has personal jurisdiction over Strong Industries
in this action, it first must determine whether there is a basis for jurisdiction under
Florida’s long-arm statute, Fla. Stat. § 48.193; Madara, 916 F.2d at 1514. Second, if it
finds that personal jurisdiction exists under Florida's long-arm statute, the Court must
then consider whether Strong Industries’ contacts with the state of Florida are sufficient
to satisfy the Due Process Clause of the Fourteenth Amendment to the United States
Constitution such that maintenance of the suit in Florida does not offend traditional
notions of fair play and substantial justice. See Int’l Shoe Co. v. Washington, 326 U.S.

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310, 315-17, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Venetian Salami Co., 554 So. 2d at 502.
If both prongs of the jurisdictional test are satisfied, then the Court may exercise
personal jurisdiction over Strong Industries. Madara, 916 F.2d at 1516.
B. FLORIDA’S LONG-ARM STATUTE
This Court examines Florida's long-arm statute as would the Florida Supreme
Court because the reach of the statute is a question of state law. See Oriental Imps. &
Curiel’s Bank, N.V., 701 F.2d 889, 890-91 (11th Cir. 1983). The Court must strictly
construe the long-arm statute. Id. at 891. In diversity cases, the Court also applies the
state’s long-arm statute. Bank, N.A. v. E.F. Hutton & Co., 926 F.2d 1030, 1033 (11th
Cir. 1991).
The statute provides for two distinct categories of personal jurisdiction: specific
jurisdiction conferred under § 48.193(1) and general jurisdiction conferred under §
48.193(2). Miller v. Berman, 289 F. Supp. 1327, 1331 (M.D. Fla. 2003) (citing Nw.
Aircraft Capital Corp. v. Stewart, 842 So. 2d 190, 193 (Fla. 5th DCA 2003)). A court
may exercise specific jurisdiction over a non-resident defendant only when the plaintiff’s
cause of action arises from or is directly related to the defendant’s contacts with the
forum state. Oldfield v. Pueblo de Bahia Lora, S.A., 558 F.3d 1210, 1221 n.27 (11th
Cir. 2009); Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino, 447 F.3d
1357, 1360 n.3 (11th Cir. 2006) (citing Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d
1286, 1292 (11th Cir. 2000)). The requirement that the plaintiff’s cause of action “arises
from” the defendant’s activities is broader than the concept of “proximate cause” and is
satisfied by a showing of some “direct affiliation, nexus, or substantial connection
between the cause of action and the [defendant’s] activities within the state.” Sun Trust
Bank v. Sun Int’l Hotels, Ltd., 184 F. Supp. 2d 1246, 1269 (S.D. Fla. 2001) (citation and

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internal quotation marks omitted). General jurisdiction refers to the power of a court to
adjudicate any cause of action involving a particular defendant if that defendant
“engaged in substantial and not isolated activity” within Florida, irrespective of whether
claim asserted arises from that activity. Meier v. Sun Int’l Hotels, Ltd., 288 F.3d 1264,
1269 (11th Cir. 2002).
The burden-shifting scheme outlined in Walt Disney Co. v. Nelson, 677 So. 2d
400 (Fla. 5th DCA 1996) applies and requires that:
The burden of demonstrating the applicability of § 48.193 may initially be
met by pleading facts within a jurisdictional basis contained in the statute.
If the plaintiff has pled a prima facie case for jurisdiction, a simple motion
to dismiss for lack of jurisdiction must fail, as a motion to dismiss without
more, challenges only the facial sufficiency of the jurisdictional pleading. If,
however, the defendant supplements the motion with an affidavit
contesting jurisdiction, then the burden returns to the plaintiff who must, by
affidavit or other sworn statement, prove a sufficient jurisdictional basis. If
the affidavits are factually reconcilable, the trial court can resolve the issue
on the basis of the affidavits; otherwise, an evidentiary hearing must be
held.
Id. at 402-03 (internal citations omitted); see also Future Tech. Today, Inc. v. OSF
Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir. 2000). When the plaintiff’s complaint
and supporting evidence conflict with the defendant’s affidavits, the Court must construe
all reasonable inferences in favor of the plaintiff. Madara, 916 F.2d at 1514; Meier, 288
F.3d at 1269.
With regard to general jurisdiction, in order to establish that a non-resident
defendant is carrying on a business or business venture in Florida, the Court must
consider whether the sum of Strong Industries’ collective business activities shows a
general course of business activity in the state for pecuniary benefit. Sculptchair, Inc. v.
Century Arts, Ltd., 94 F.3d 623, 627-28 (11th Cir. 1996). Factors relevant to, but not
dispositive of this analysis include the presence and operation of an office in Florida; the

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possession and maintenance of a license to do business in Florida; a substantial
number of Florida clients served; and a large percentage of overall revenue gleaned
from Florida clients. Horizon Aggressive Growth, L.P. v. Rothstein–Kass, P.A., 421
F.3d 1162, 1167 (11th Cir. 2005).
C. APPLICATION AND ANALYSIS
In the Amended Complaint, Holsapple alleges that this Court has personal
jurisdiction over Strong Industries because:
Strong Industries purposely avails itself of business opportunities with
residents and entities in the state of Florida and places products into the
stream of commerce of the state of Florida, thus giving rise to a
reasonable expectation by Strong Industries that it may be hailed into the
courts of the state of Florida to answer for its tortious conduct under
Florida’s long-arm statute.
Strong Industries further directs
advertisements concerning the availability of its products to consumers in
this state and ships both parts and literature into, and out of, the state of
Florida in exchange for money. In addition, Strong Industries, supplies
literature to consumers in the State of Florida for the purposes of providing
information as to parts and products that can be purchased from Strong
Industries. Further, Strong Industries, through its corporation, parent
company, and/or its subsidiaries, sells its products to Florida residents and
entities for use of its products in Florida.
(Doc. 9 ¶9.) In its Motion, Strong Industries argues that this case should be dismissed
for lack of personal jurisdiction because it has no subsidiaries and cannot be subject to
personal jurisdiction based on its parent company’s contacts with Florida. In support,
Strong Industries has provided the Declaration of Brooks Strong, the President of
Strong Industries, Inc. (“Brooks Declaration”) (Doc. 18-1), which states that Strong
Industries has no subsidiaries. (Doc. 18-1 ¶17.) Strong Industries also argues that it
cannot be subject to personal jurisdiction based on the acts of its parent company,
Strong Concrete Services, Inc. (“SCSI”), stating in the Brooks Declaration that SCSI
does not control, and is not directly involved in, the day to day operation of
Strong. Strong does not control, and is not directly involved in, the day to

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day operation of Strong Concrete Services, Inc. Strong Concrete
Services, Inc., does not participate in any transactions undertaken by
Strong with respect to Strong products and/or services. Strong does not
participate in any transactions undertaken by Strong Concrete Services,
Inc., with respect to any products and/or services of Strong Concrete
Services, Inc.
(Doc. 18-1 ¶¶18-21.) The Brooks Declaration goes on to declare that “Strong is a
Texas corporation with is principal place of business in Texas.” (Id. ¶3.) “Strong does
not maintain any offices in Florida, does not pay taxes in Florida, and does not own
property in Florida.” (Id. ¶4.) “Strong is not registered as a corporation with the Florida
Department of State Division of Corporations.” (Id. ¶5.) “Strong does not engage in
advertising directed to Florida.” (Id. ¶8.) “Strong does not market its products directly to
Florida.” (Id. ¶9.) “Strong does not send employees to Florida.” (Id. ¶10.) “Strong
does not sell products in Florida.” (Id. ¶11.) Strong does not send or supply literature to
Florida

regarding

its

products.”

(Id.

¶12.)

“Strong

maintains

a

website

(www.superdumps.com) that states as follows: ‘[a]t this time the benefits of superdumps
in Florida are less than we feel is sufficient to justify the cost.’ This representation has
existed on the websites in its present form for over two years.” (Id. ¶13.) “In at least the
last ten years, Strong has never shipped products to or from Florida.” (Id. ¶15.)
In response, Plaintiff has come forward with an e-mail message from Ken Oliver,
Arnold Brothers’ attorney who confirmed to Plaintiff’s prior counsel that a gentleman
named Sal Manzi, an employee of JJ Gunite, Inc., drove the chassis of the truck from
Florida to Strong Industries in Texas where Strong Industries fabricated the mixer and
attached it to the chassis. (Doc. 21, Ex. A.) Arnold Brothers is the current owner of the
cement mixer. The e-mail further indicates that Mr. Manzi drove the assembled mixer
truck from Strong Industries’ facility back to Florida while he was accompanied by the

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former owner of JJ Gunite, Inc. (Id.)
1. Specific Jurisdiction
Plaintiff did not identify the pertinent subsection of the Florida long-arm statute in
her Amended Complaint, but in her Response Brief, Plaintiff contends that this Court
has specific jurisdiction over Strong Industries pursuant to Fla. Stat. § 48.193(1)(f)(2),
(Doc. 21 p. 4), which reads:
1. Any person, whether or not a citizen or resident of this state, who
personally or through an agent does any of the acts enumerated in this
subsection thereby submits himself or herself and, if he or she is a natural
person, his or her personal representative to the jurisdiction of the courts
of this state for any cause of action arising from the doing of any of the
following acts:
f. Causing injury to persons or property within this state arising out
of an act or omission by the defendant outside this state, if, at or
about the time of the injury, either:
2. Products, materials, or things processed,
serviced, or manufactured by the defendant
anywhere were used or consumed within this
state in the ordinary course of commerce,
trade, or use.
Fla. Stat. § 48.193(1)(f)(2). Plaintiff argues that, as alleged in her Amended Complaint,
Strong Industries is subject to jurisdiction in Florida as it manufactured the volumetric
mixer and attached it to a vehicle that Strong Industries knew was being purchased by a
Florida company – JJ Gunite, Inc. – and would be driven directly to and for use in
Florida. (Doc. 9 ¶¶12-13.) In this case, it is not clear from the Amended Complaint that
Strong Industries, Inc. manufactured the allegedly defective cement mixer. The Brooks
Declaration states that: “Strong does not design, manufacture, distribute, or sell cement
boxes, and has never designed, manufactured, distributed, or sold cement boxes.”
(Doc. 18-1 ¶16.) In response, Plaintiff did not come forward with an “affidavit or other

9

sworn statement [to] prove a sufficient jurisdictional basis.” Walt Disney Co., 677 So. 2d
at 402-03. Instead, Plaintiff has included the e-mail message, intending to establish the
requirements for specific jurisdiction pursuant to Fla. Stat. § 48.193(1)(f)(2). See also
Future Tech. Today, Inc., 218 F.3d at 1249 (“If the defendant sustains this burden, the
plaintiff is required to substantiate the jurisdictional allegations in the complaint by
affidavits or other competent proof, and not merely reiterate the factual allegations in the
complaint.”)

Plaintiff has failed to satisfy her burden and come forward with any

affidavits or other competent proof that would substantiate her jurisdictional allegations
in support of Fla. Stat. § 48.193(1)(f)(2), including whether it was in fact Strong
Industries that manufactured the mixer at issue.
Thus, the Court finds Plaintiff’s Amended Complaint fails to satisfy specific jurisdiction.2
2. General Jurisdiction
General jurisdiction refers to the power of a court to adjudicate any cause of
action involving a particular defendant if that defendant “engaged in substantial and not
isolated activity” within Florida, irrespective of whether the claim asserted arises from
2

Even though not specifically referenced by Plaintiff in her Amended Complaint
or her Response, another basis for specific jurisdiction could be Fla. Stat. §
48.193(1)(b), wherein Florida’s long-arm statute allows for jurisdiction over defendants
who “commit[] a tortious act within the state.” Plaintiff’s Amended Complaint asserts
that Strong Industries may be hailed into the Florida courts to “answer for its tortious
conduct under Florida’s long-arm statute.” (Doc. 9 ¶8.) While there is a split in authority
among Florida courts regarding the issue of whether Fla. Stat. § 48.193(1)(b) allows for
the exercise of personal jurisdiction where a tortious act committed outside the state
results in injury within Florida, see Posner v. Essex Ins. Co., 178 F.3d 1209, 1216 (11th
Cir. 1999); see also Internet Solutions Corp. v. Marshall, 39 So.3d 1201, 1206 n.6 (Fla.
2010) (recognizing but declining to resolve the conflict among appellate courts), the
Court need not resolve this issue as the Brooks Declaration has raised an issue as to
whether it was Strong Industries that designed, manufactured, distributed, or sold the
cement box apparatus in this case, such that their alleged tortious actions regarding the
product could be the basis for the Court’s personal jurisdiction. The Brooks Declaration
has not been refuted by Plaintiff through competent proof, only the e-mail message.

10

that activity. Meier, 288 F.3d at 1269. General jurisdiction arises from a defendant’s
contacts with the forum that are not necessarily related to the cause of action being
litigated. Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1293 (11th Cir. 2000).
“An assertion of general jurisdiction under section 48.193(2) requires a showing of
continuous and systematic general business contacts with this state.”

Trustees of

Columbia Univ. v. Ocean World, S.A., 12 So. 3d 788, 792 (Fla. 4th DCA 2009)
(quotations and citations omitted). “Florida cases have found ‘continuous systematic
business contacts’ to confer general jurisdiction where a nonresident defendant’s
activities are extensive and pervasive, in that a significant portion of the defendant’s
business operations or revenue derived from established commercial relationships in
the state.” Id.
The Court has not been supplied with evidence tending to show that Strong
Industries engaged in continuous and systematic contacts with Florida. Plaintiff has not
countered the declaration statements from Brooks Strong indicating that Strong
Industries does not maintain any offices in Florida, does not pay taxes in Florida, does
not own property in Florida, does not sell products in Florida, and does not send
employees to Florida. Rather, Plaintiff’s Amended Complaint simply states that Strong
Industries “avails itself to business opportunities with residents and entities in the state
of Florida and places products into the stream of commerce of the state of Florida . . . .”
(Doc. 9 ¶8.) Thus, the Court does not find general jurisdiction over Strong Industries.
Having found that the allegations in the Amended Complaint fail to satisfy the
requirements of Fla. Stat. § 48.193, the Court need not consider the due process prong
of the personal jurisdiction inquiry. See PVC Windoors, Inc., 598 F.3d at 807 (“Only
where the long-arm statute provides jurisdiction do[es the Court] proceed to the second

11

step....”).
3. Jurisdictional Discovery
In its Response, Plaintiff requests that the Parties be permitted to conduct limited
jurisdictional discovery in order to determine “Defendant’s role in the matter.” (Doc. 21,
p. 5.)

A qualified right to jurisdictional discovery is recognized in the Eleventh Circuit,

especially when material jurisdictional facts are in dispute. See Eaton v. Dorchester
Dev., Inc., 692 F.2d 727, 730-31 (11th Cir. 1982) (citing Blanco v. Carigulf Lines, 632
F.2d 656, 658 (5th Cir. 1980) (“Plaintiff must be given an opportunity to develop facts
sufficient to support a determination on the issue of jurisdiction. As we said in Blanco,
‘the rules entitle a plaintiff to elicit material through discovery before a claim may be
dismissed for lack of jurisdiction.’”)).
Here, the Court finds that Plaintiff is entitled to jurisdictional discovery to include
facts relevant to whether there is specific or general jurisdiction over Strong Industries
pursuant to Fla. Stat. § 48.193. The Parties will be afforded 60 days to do so.
CONCLUSION
Based on the foregoing, it is ORDERED as follows:
1)

Defendant Strong Industries, Inc.’s Motion to Dismiss for Lack of Personal

Jurisdiction (Doc. 25) is GRANTED.
2)

Plaintiff’s Amended Complaint (Doc. 9, case number 2:12-cv-355-FtM-UA-

SPC) is DISMISSED WITHOUT PREJUDICE.
3)

The Parties may conduct jurisdictional discovery for a period of 60 DAYS

from the date of this Order. Plaintiff may file a Second Amended Complaint within 10
DAYS after the completion of jurisdictional discovery.

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DONE AND ORDERE in Cham
D
D
ED
mbers in F
Fort Myers, Florida, on March 19th,
,
2013.

Copies:
Parties and Counse of Recor
a
el
rd

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