Boat Owners Association of the United States v. Flagship Towing LLC et al

Filing 35

OPINION AND ORDER denying 24 Defendant Christopher B. Riley's Motion to Dismiss. See Opinion and Order for details. Signed by Judge John E. Steele on 6/23/2015. (MAW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BOAT OWNERS ASSOCIATION OF
THE UNITED STATES,
Plaintiff,
v.

Case No: 2:15-cv-197-FtM-29DNF

FLAGSHIP
TOWING
LLC
CHRISTOPHER B. RILEY,

and

Defendants.

OPINION AND ORDER
This matter comes before the Court on review of Defendant’s
Motion to Dismiss and Memorandum in Support (Docs. ##24-25) filed
on June 1, 2015.
16, 2015.

Plaintiff filed a Response (Doc. #33) on June

For the reasons set forth below, the motion is denied.
I.

Plaintiff
(BoatUS)

has

Boat
filed

Owners
a

Association

five-count

of

Complaint

the

United

(Doc.

#1)

States
against

Defendants Flagship Towing LLC (Flagship) and Christopher B. Riley
(Riley) alleging trademark infringement and deceptive and unfair
trade practices.

The underlying facts, as set forth in the

Complaint, are as follows:
BoatUS is a corporation organized under the laws of the
District of Columbia with its principle place of business in
Alexandria, Virginia.

(Id. at ¶ 3.)

BoatUS provides fuel,

maintenance,
services.

on-water

towing,

(Id. at ¶ 11.)

and

other

boating

products

and

BoatUS paints its fleet of towing and

service boats in a color scheme consisting of a red background
with white diagonal stripes near the bow and white lettering aft
of the stripes (the BoatUS Mark).

(Id. at ¶ 13.)

In 2000, the

U.S. Patent & Trademark Office issued to BoatUS the federal
trademark registration number 2,356,475 for use of the BoatUS Mark
in connection with “boat towing services; providing on the water
assistance to boaters by the delivering of gasoline and other
supplies by boat; [and] salvaging and towing disabled vehicles.”
(Id. at ¶ 14.)
Flagship is a corporation organized under the laws of the
State of Texas with its principal place of business in Leander,
Texas.

(Id. at ¶ 4.)

In 2012, BoatUS became aware that Flagship

was offering boat towing services using boats painted in a manner
confusingly similar to the BoatUS Mark.

(Id. at ¶ 17.)

BoatUS

demanded that Flagship change its paint scheme, but Flagship
refused.
Flagship,

(Id. at ¶ 18.)
and

directed

infringing conduct.

Riley is the sole director and member of
and

controlled

Flagship’s

allegedly-

(Id. at ¶¶ 5, 9.)

Based on these allegations, BoatUS brings causes of action
against Flagship and Riley for trademark infringement in violation
of the Lanham Act (Count One), false designation of origin in
violation of the Lanham Act (Count Two), common law trademark

2

infringement (Count Three), violations of the Florida Deceptive
and Unfair Trade Practices Act (Count Four), and unfair competition
(Count Five).

Riley now moves to dismiss all causes of action

brought against him individually, arguing (1) that the Court lacks
personal jurisdiction, and (2) that BoatUS has failed to state a
claim against him.
II.
A court is obligated to dismiss an action against a defendant
over which it has no personal jurisdiction.

Posner v. Essex Ins.

Co., 178 F.3d 1209, 1214 n.6 (11th Cir. 1999).

“When jurisdiction

is based on a federal question arising under a statute that is
silent regarding service of process, Rule 4(e) of the Federal Rules
of Civil Procedure directs us to look to the state long-arm statute
in order to determine the existence of personal jurisdiction.”
Sculptchair, Inc. v. Century Arts, 94 F.3d 623, 626–27 (11th Cir.
1996). Here, the Lanham Act contains no such service of process
provision,

so

arm statute.

the

Court

Id. at 627.

must

look

to

the

Florida

long-

If the Court determines that the long-

arm statute is satisfied, it must then determine “whether the
extension

[of]

jurisdiction

comports

with

requirements of the Fourteenth Amendment.”

the

process

Meier v. Sun Int’l

Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002).

3

due

A.

Florida’s Long-Arm Statute
The reach of Florida’s long-arm statute is a question of

Florida law and federal courts must construe it as would the
Florida Supreme Court.

United Techs. Corp. v. Mazer, 556. F.3d

1260, 1274 (11th Cir. 2009) (citations omitted).

Under Florida

law, “[a] plaintiff seeking the exercise of 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.”
F.3d at 1214).

Mazer, 556 F.3d at 1274 (citing Posner, 178

In assessing the sufficiency of the jurisdictional

allegations, the Court must accept the factual allegations in the
complaint as true.

Licciardello v. Lovelady, 544 F.3d 1280, 1284

n.3 (11th Cir. 2008).

If the plaintiff’s factual allegations are

sufficient to support the exercise of personal jurisdiction, the
burden shifts to the defendant to challenge the allegations with
affidavits or other evidence to the contrary.
1269.

Meier, 288 F.3d at

The burden then shifts back to the plaintiff to produce

evidence supporting jurisdiction.
Florida’s

long-arm

statute

Id.
provides

that

a

person

“[c]omitting a tortious act within this state” is subject to
personal jurisdiction. Fla. Stat. § 48.193(1)(a)(2). Here, BoatUS
alleges that the Court has personal jurisdiction over Riley because
he “directs and controls the infringing conduct of Flagship”
occurring within Florida.

Taken as true, these allegations are

4

sufficient to allege personal jurisdiction.

See, e.g., Kitroser

v. Hurt, 85 So. 3d 1084, 1090 n.3 (Fla. 2012) (individual who
commits intentional misconduct in Florida while acting on behalf
of corporation is subject to personal jurisdiction in Florida).
The burden now shifts to Riley, who must challenge BoatUS’s
jurisdictional allegations with affidavits or other admissible
evidence.
In response, Riley asserts that he “is not a resident of the
State of Florida, he is not the registered agent of Flagship [] in
Florida, nor does he act on behalf of Flagship [] physically in
the State of Florida on any regular basis.”

(Doc. #25, pp. 2-3.)

However, these assertions are not supported by an affidavit or
documentary evidence and therefore must be disregarded.

See

Posner, 178 F.3d at 1214; Venetian Salami Co. v. Parthenais, 554
So. 2d 499, 502 (Fla. 1989) (“A defendant wishing to contest the
allegations of the complaint concerning jurisdiction . . . must
file affidavits in support of his position.”).

Moreover, even if

Riley’s allegations were supported by admissible evidence, they
would be insufficient to avoid personal jurisdiction here. Florida
courts

have

interpreted

the

long-arm

statute

expansively,

concluding that an out-of-state defendant’s physical presence in
Florida is not required to commit a tortious act in Florida.

See

Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1333-55
(11th Cir. 2013) (where infringing product was sold in Florida,

5

defendant was subject to personal jurisdiction in Florida even
though defendant acted on behalf of corporation and was not
physically in Florida when he participated in the infringement).
Here, Riley concedes that Flagship operates in Florida, and BoatUS
has alleged that Riley directed Flagship to infringe upon BoatUS’s
trademark.

Thus, the fact that Riley is not a Florida resident,

or the fact that he does not act on behalf of Flagship “physically”
in Florida on a “regular basis” would not prevent the exercise of
long-arm jurisdiction over Riley.
Accordingly,

the

Court

Id.

concludes

that

the

exercise

of

jurisdiction is appropriate under Florida’s long-arm statute.
Riley does not argue that exercising jurisdiction over him violates
due process and the Court sees no such impediments.

See, e.g.,

Licciardello, 544 F.3d at 1288 (“The Constitution is not offended
by Florida's assertion of its jurisdiction over . . . nonresident
tortfeasors”
Florida).

whose

intentional

misconduct

caused

injury

in

Accordingly, Riley’s motion to dismiss for lack of

personal jurisdiction is denied.
III.
Riley also argues that the causes of action against him must
be dismissed for failure to state a claim upon which relief can be
granted.

Under

Federal

Rule

of

Civil

Procedure

8(a)(2),

a

Complaint must contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”

6

Fed. R. Civ. P.

8(a)(2).

This

obligation

“requires

more

than

labels

and

conclusions, and a formulaic recitation of the elements of a cause
of action will not do.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007) (citation omitted).

To survive dismissal, the factual

allegations must be “plausible” and “must be enough to raise a
right to relief above the speculative level.”

Id. at 555.

See

also Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
This requires “more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citations omitted).

Thus, the Court engages in a two-step

approach: “When there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.”

Iqbal, 556 U.S.

at 679.
Riley argues that BoatUS has failed to adequately allege
causes of action against him (as opposed to Flagship) because
BoatUS

“has

made

no

allegations

in

its

Complaint

specific, individual conduct” on his behalf.
This is incorrect.

concerning

(Doc. #25, p. 2.)

BoatUS has alleged that Riley is Flagship’s

sole director and that he directed and controlled Flagship’s
trademark infringement.

(Doc. #1, ¶¶ 5, 9.)

It is “well settled

that personal participation by a corporate employee, officer, or
director in the wrongful activities of a corporation is sufficient
to make the individual, as well as the corporation, substantively

7

liable for a tort.” Delong Equip. Co. v. Washington Mills Abrasive
Co., 840 F.2d 843, 851 (11th Cir. 1988).

Here, BoatUS has alleged

that Riley personally participated in Flagship’s infringement.
Taking those allegations as true, Riley can be held substantively
liable for that conduct.

Therefore, Riley’s motion to dismiss for

failure to state a claim is denied.
Accordingly, it is now
ORDERED:
Defendant’s Motion to Dismiss (Doc. #24) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
June, 2015.

Copies: Counsel of record

8

23rd

day of