Mey v. Enterprise Financial Group, Inc. et al
Filing
84
OPINION AND ORDER granting 52 Motion to dismiss for lack of personal jurisdiction; dismissing 37 First Amended Class Action Complaint without prejudice as to defendant Todd Beikmann only. The Clerk shall withhold entry judgment until the conclusion of the case but terminate this defendant on the docket. Signed by Judge John E. Steele on 12/19/2016. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DIANA MEY, individually and
on behalf of all others
similarly situated,
Plaintiff,
v.
Case No: 2:15-cv-463-FtM-99MRM
ENTERPRISE FINANCIAL GROUP,
INC., a Texas corporation,
NATIONAL REPAIR PROTECTION,
LLC,
a
Florida
limited
liability company, and TODD
BEIKMANN,
Defendants.
OPINION AND ORDER
This
matter
comes
before
the
Court
on
Defendant
Todd
Beikmann’s (defendant or Beikmann) Motion to Dismiss Plaintiff’s
First Amended Complaint for Lack of Personal Jurisdiction (Doc.
#52), filed
on
September
12,
2016.
Plaintiff
affidavit attached to the motion (Doc. #52-1).
jurisdictional
discovery
during
which
submitted
his
After a period of
Beikmann
was
deposed,
plaintiff filed a response (Doc. #77), attaching the deposition
transcript.
Beikmann filed a reply (Doc. #80).
set forth below, the motion is granted.
For the reasons
I.
On August 3, 2016, plaintiff Diana Mey (plaintiff or Mey), a
citizen of West Virginia, filed a three-count amended class-action
complaint for relief (Doc. #37), alleging that defendants violated
the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, by
placing
unsolicited,
promotional
telemarketing
calls
to
plaintiff’s (and others) cellular and residential phones even
though the individuals were registered with the national Do-NotCall registry, 47 C.F.R. § 64.1200(c)-(d) (Count I). 1
Count II
alleges that plaintiff further violated the TCPA by placing calls
to
cellular
telephones
using
an
“automatic
telephone
dialing
system” (ATDS), as that term is defined by the TCPA, 47 U.S.C. §
227(a)(1). 2
Plaintiff seeks an injunction (Count III) and an award
of statutory damages.
As
alleged
in
plaintiff’s
Amended
Complaint,
defendant
Enterprise Financial Group, Inc. (“Enterprise”), a citizen of
1
Any entity making calls for telemarketing purposes must
institute procedures for maintaining a list of persons who request
not to receive telemarketing calls made by or on behalf of that
person or entity. 47 C.F.R. § 64.1200(d). An individual whose
name is on the Do-Not-Call registry, and who has received more
than one telephone call within any twelve-month period by or on
behalf of the same entity without their consent has a private right
of action under the TCPA. 47 U.S.C. § 227(c)(5).
2
The TCPA defines an ATDS as equipment which has the capacity
to both: (1) store or produce telephone numbers to be called, using
- 2 -
Texas, sells a variety of consumer-related products and services
for automobile dealers and manufacturers, including after-market
auto warranties directly to consumers and also through third-party
call centers.
(Doc. #37, ¶¶ 1, 8.)
Defendant National Repair
Protection, LLC (“National Repair”), a citizen of Florida, is one
such call center that sells Enterprise’s products and services.
(Id. at ¶ 2.)
a random or sequential number generator, and (2) dial such numbers.
47 U.S.C. § 227(a)(1). Plaintiff claims that defendants violated
47 U.S.C. § 227(b)(1)(A)(iii), which provides in pertinent part
that
[i]t shall be unlawful for any person within the United
States, or any person outside the United States if the
recipient is within the United States—
(A) to make any call (other than a call made for
emergency purposes or made with the prior express
consent of the called party) using any automatic
telephone dialing system or an artificial or prerecorded
voice —
...
(iii) to any telephone number assigned to a paging
service, cellular telephone service, specialized mobile
radio service, or other radio common carrier service, or
any service for which the called party is charged for
the call....
47 U.S.C. § 227(b)(1)(A)(iii).
- 3 -
Plaintiff alleges that defendant Beikmann, a resident of
Kansas, is an owner and/or operator of National Repair and in that
capacity
directed,
was
aware
of,
and/or
benefitted
from
the
unlawful calls made by National Repair and/or its agents on behalf
of Enterprise.
(Id. at ¶¶ 3, 10.)
In this regard, plaintiff
alleges that National Repair is an alter ego of Beikmann, and that
Beikmann dominated, influenced, and/or controlled National Repair
at all relevant times, as well as the business, property, and
affairs of National Repair such that National Repair functioned as
a
mere
instrument
or
tool
of
Beikmann.
(Id.
at
¶
11(a).)
Plaintiff also alleges that National Repair was created absent
corporate formalities and continued pursuant to a fraudulent plan
conceived by Beikmann whereby the income, revenue, and profits of
National Repair were diverted by Beikmann to himself, and call
centers were formed to avoid individual liability.
11(d).)
National Repair is now insolvent. 3
Plaintiff’s
personal
Amended
jurisdiction
Complaint
over
states
defendants
(Id. at ¶
(Id. at ¶ 11(f).)
that
because
the
Court
“they
has
conduct
significant business transactions within the District, solicit
3
National Repair failed to file an answer or responsive
pleading in this case and a clerk’s entry of default has been
entered against it. (Doc. #70.)
- 4 -
consumer sales in this District.”
(Doc. #37, ¶ 13.)
As to
Beikmann, the Amended Complaint states that he is an “individual
residing in Prairie Village, Kansas,” but does not contain any
allegations concerning Beikmann’s citizenship.
(Id. at ¶ 10.)
However, as the Amended Complaint asserts that the Court has
personal jurisdiction over the defendants via the application of
Florida’s long-arm statute (Id. at ¶ 13), the Court assumes that
Beikmann is not a citizen of Florida.
Beikmann
moves
to
dismiss
pursuant
to
Fed.
R.
Civ.
P.
12(b)(2), arguing that the Court lacks personal jurisdiction over
him because he has not committed any acts in Florida which would
extend the state’s long-arm statute to him, and he does have
sufficient contacts, ties or a relationship to this forum so that
the Court may exercise judicial power over him.
(Doc. #52.)
Beikmann also argues that he is protected by the corporate shield
doctrine and cannot be hailed into a Florida court for merely
conducting business via National Repair, a Florida company, and
did not take any actions outside those as a representative of
National Repair.
(Id. at pp. 9-10.)
Plaintiff responds that
Beikmann is subject to personal jurisdiction under Florida’s longarm statute on two bases: (1) he was carrying on a business venture
with National Repair, a Florida company, which is a mere alter ego
- 5 -
of Beikmann, Fla. Stat. § 48.193(1)(a)(1); and (2) because he
committed tortious acts (TCPA violations) in the state, Fla. Stat.
§ 48.193(1)(a)(2).
Accordingly, the Court will address these
provisions of the statute.
II.
When ruling on a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(2), the Court must conduct a “two-step
inquiry
when
determining
whether
the
exercise
of
jurisdiction over a nonresident defendant is proper.”
personal
Thomas v.
Brown, 504 F. App’x 845, 847 (11th Cir. 2013) (citing Horizon
Aggressive Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162,
1166
(11th
Cir.
2005)).
The
Court
first
determines
whether
defendant’s activities satisfy the Florida long-arm statute, and
if so, whether the extension of jurisdiction comports with the due
process requirements of the Fourteenth Amendment of the United
States Constitution.
See Meier v. Sun Int’l Hotels, Ltd., 288
F.3d 1264, 1269 (11th Cir. 2002).
“A federal district court in
Florida may exercise personal jurisdiction over a nonresident
defendant to the same extent that a Florida court may, so long as
the exercise is consistent with federal due process requirements.”
Fraser v. Smith, 594 F.3d 842, 846 (11th Cir. 2010) (quoting
Licciardello v. Lovelady, 544 F.3d 1280, 1283 (11th Cir. 2008)).
- 6 -
The exercise of personal jurisdiction comports with due process if
the
non-resident
defendant
has
established
“certain
minimum
contacts with the forum such that the maintenance of the suit does
not
offend
justice.”
traditional
notions
of
fair
play
and
substantial
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466
U.S. 408, 414, (1984) (quoting Int’l Shoe Co. v. Washington, 326
U.S. 310, 316 (1945)).
The plaintiff “bears the initial burden of alleging in the
complaint sufficient facts to make out a prima facie case of
jurisdiction.”
United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274
(11th Cir. 2009).
A prima facie case is established if the
plaintiff alleges enough facts to withstand a motion for directed
verdict. 4
SEC v. Carrillo, 115 F.3d 1540, 1542 (11th Cir. 1997)
4
On motions for directed verdict and for judgment
notwithstanding the verdict the Court should consider all of the
evidence — not just that evidence which supports the non-mover’s
case — but in the light and with all reasonable inferences most
favorable to the party opposed to the motion. If the facts and
inferences point so strongly and overwhelmingly in favor of one
party that the Court believes that reasonable men could not arrive
at a contrary verdict, granting of the motions is proper. On the
other hand, if there is substantial evidence opposed to the
motions, that is, evidence of such quality and weight that
reasonable and fair-minded men in the exercise of impartial
judgment might reach different conclusions, the motions should be
denied, and the case submitted to the jury. A mere scintilla of
evidence is insufficient to present a question for the jury. The
motions for directed verdict and judgment n.o.v. should not be
decided by which side has the better of the case, nor should they
be granted only when there is a complete absence of probative facts
- 7 -
(citation omitted).
“First, the plaintiff must allege sufficient
facts in [its] complaint to initially support long arm jurisdiction
before the burden shifts to the defendant to make a prima facie
showing of the inapplicability of the statute.”
Future Tech.
Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir.
2000) (citation omitted).
If the defendant sustains its burden
by raising “a meritorious challenge to personal jurisdiction”
“through affidavits, documents[,] or testimony,” the burden shifts
back to the plaintiff.
Sculptchair, Inc. v. Century Arts, Ltd.,
94 F.3d 623, 627 (11th Cir. 1996).
Plaintiff is then 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.”
218 F.3d at 1247 (citation omitted).
Future Tech. Today, Inc.,
If in conflict, “the district
court must construe all reasonable inferences in favor of the
plaintiff.”
Thomas v. Brown, 504 F. App’x at 847 (quoting Madara
v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990)).
to support a jury verdict. There must be a conflict in substantial
evidence to create a jury question. Miles v. Tenn. River Pulp and
Paper Co., 862 F.2d 1525, 1528 (11th Cir. 1989) (citing Kaye v.
Pawnee Constr. Co., 680 F.2d 1360, 1364 (11th Cir. 1982); Boeing
Co. v. Shipman, 411 F.2d 365, 374–75 (5th Cir. 1969)).
- 8 -
For purposes of the motion, plaintiff asserts that the Court
has
specific
jurisdiction
over
Beikmann
under
the
following
portion of the Florida long-arm statute:
(1)(a) A 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:
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.
Fla. Stat. §§ 48.193(1)(a)(1),(2).
(Doc. #77, pp. 5-10.)
A
limited exception to the long-arm statute, known as the “alter ego
theory,” provides that “a nonresident shareholder of a corporation
doing business in Florida may be subject to long-arm jurisdiction
if the alter ego test can be met.”
WH Smith, PLC v. Benages &
Assocs., 51 So. 3d 577, 581 (Fla. 3d DCA 2010) (quoting Aldea
Communs., Inc. v. Gardner, 725 So. 2d 456, 457 (Fla. 2d DCA 1999)).
“To
establish
jurisdiction
plaintiff’s
pleading
allegations
to
corporation.”
must
pierce
Id.
under
set
the
the
forth
alter
ego
sufficient
corporate
veil
of
theory,
the
jurisdictional
the
resident
“The corporate veil cannot be pierced unless
the plaintiff can establish both that the corporation is a ‘mere
- 9 -
instrumentality’ or alter ego of the defendant, and that the
defendant engaged in ‘improper conduct’ in the formation or use of
the corporation.”
Id. (quoting Bellairs v. Mohrmann, 716 So. 2d
320, 322 (Fla. 2d DCA 1998) (emphasis in original)).
III.
A. Fla. Stat. § 48.193(1)(a)(1): Engaging in Business in Florida
Plaintiff
argues
that
Beikmann
is
subject
to
specific
jurisdiction under the long-arm statute because he, personally or
through National Repair, is “[o]perating, conducting, engaging in,
or carrying on a business or business venture in this state.”
Fla. Stat. § 48.193(1)(a)(1).
“In order to establish that a
defendant is carrying on [a] business for the purposes of the longarm statute, the activities of the defendant must be considered
collectively and show a general course of business activity in the
state for pecuniary benefit.”
Horizon Aggressive Growth, L.P. v.
Rothstein–Kass, P.A., 421 F.3d 1162, 1167 (11th Cir. 2005) (quoting
Future Tech. Today, Inc., 218 F.3d at 1249); see also Fraser, 594
F.3d at 848.
“[E]ngaging in a single act for profit can amount
to a business venture,” Labbee v. Harrington, 913 So. 2d 679, 683
(Fla. 3d DCA 2005) (citing Wm. E. Strasser Constr. v. Linn, 97 So.
2d
458,
460
(Fla.
1957)),
but
not
every
gainful
transaction
involving a Florida resident amounts to a business venture.
- 10 -
See
Walack v. Worldwide Machinery Sales, Inc., 278 F. Supp. 2d 1358,
1366 (M.D. Fla. 2003).
Some factors the Court must consider
include the “presence and operation of an office in Florida, [ ]
the possession and maintenance of a license to do business in
Florida, the number of Florida clients served, and the percentage
of
overall
revenue
gleaned
from
Florida
clients.”
Horizon
Aggressive Growth, L.P., 421 F.3d at 1167 (internal citations
omitted).
In response, Beikmann submitted an affidavit in which he
attests that he has never maintained an office in the State of
Florida or a license in the State of Florida. (Doc. #52-1.)
Furthermore, he attests that he has a minority interest in National
Repair and worked on an “independent contractor” basis for National
Repair.
(Id.)
accounting
He also had no access to the bank accounts or
records
of
National
Repair,
and
did
not
have
any
authority to make executive decisions on behalf of National Repair.
(Id.)
During his deposition, he testified that he was not an
employee of National Repair, but had a 25% ownership interest in
the company and acted as an independent contractor for National
Repair from October 2014 until April 2015 when he gave up his
ownership stake in the company.
(Doc. #77-3, p. 11-12.)
During
this time, Beikmann would procure lists of telephone numbers for
- 11 -
marketing purposes from certain third-party companies.
31-32.)
(Id. at
He also attended meetings with National Repair managers
to express “directions of the company.”
(Id. at 28.)
National
Repair would initiate calls to individuals on the lists from their
call centers on behalf of Enterprise.
(Id. at 16-17.)
Beikmann
testified that these call centers were located in Missouri and to
his knowledge, National Repair has no call centers or employees in
Florida, nor corporate officers. 5
If
a
defendant
submits
(Id.)
affidavit
evidence
challenging
jurisdiction that makes specific factual denials based on personal
knowledge, the burden shifts back to the plaintiff to produce
evidence supporting jurisdiction.
United Tech. Corp. v. Mazer,
556 F.3d 1260, 1276 (11th Cir. 2009).
Plaintiff has not refuted
these assertions in Beikmann’s affidavit.
Thus, plaintiff has not
met her burden of establishing Beikmann is within the reach of
Florida’s long-arm statute because he carries on a business venture
within the state.
Indeed, there is no evidence before the Court
that involve Beikmann’s conduct within the state of Florida other
than the fact that he was a non-resident independent contractor
5
This is in contrast to plaintiff’s Amended Complaint, which
alleges for venue purposes that defendants made unsolicited calls
to plaintiff and the putative class members from the Middle
District of Florida. (Doc. #37, ¶ 14.)
- 12 -
and
minority
owner
of
a
Florida-resident
defendant
for
approximately six-months’ time, which does not show a course of
general business activity within the state.
Accordingly, the
Court
long–arm
finds
this
provision
of
the
Florida
statute
inapplicable.
Plaintiff
further
attempts
to
establish
this
Court’s
jurisdiction under the alter ego exception to Florida’s long-arm
statute, but plaintiff has not provided any facts for the Court to
find that National Repair is a mere alter ego of Beikmann in order
to pierce the corporate veil.
Plaintiff has not shown that
National Repair was a “mere instrumentality” of Beikmann, nor that
Beikmann engaged in “improper conduct” in the formation or use of
the company.
There is no indication that Beikmann dominated or
controlled National Repair.
The mere fact that Beikmann was a
minority owner in National Repair is insufficient to bring him
within the reach of Florida’s long-arm statute absent sufficient
allegations to pierce the corporate veil.
See generally Bellairs
v. Mohrmann, 716 So. 2d 320, 322 (Fla. 2d DCA 1998).
Furthermore,
the Corporate Shield Doctrine provides that a corporate officer is
not by virtue of his position subject to personal jurisdiction.
The “rationale of the doctrine is the notion that is unfair to
force an individual to defend a suit brought against him personally
- 13 -
in a forum with which his only relevant contacts are acts performed
not for his own benefit but for the benefit of his employers.”
Doe v. Thompson, 620 So. 2d 1004, 1006 (Fla. 1993) (internal
citations omitted.)
B. Fla. Stat. § 48.193(1)(a)(2): Committing a Tortious Act
Section 48.193(1)(a)(2) provides that a defendant “submits
himself or herself ... to the jurisdiction of the courts of this
state
for
any
cause
of
action
arising
from
[the
defendant’s
activities] ... [c]ommitting a tortious act within this state.”
The only tort alleged by the plaintiff is “direct involvement in
and direction of TCPA violations.”
(Doc. #77, p. 8.)
Under
Florida law, it is well established that physical presence in
Florida is not required to commit a tortious act in Florida.
Internet Sols. Corp. v. Marshall, 39 So. 3d 1201, 1207 (Fla. 2010).
While the Court is not entirely convinced that a claim for
violation of the TCPA qualifies as a “tort” for purposes of
Florida’s long-arm statute, and plaintiff cites no case law in
support of such a proposition, the Florida Supreme Court has held
in
a
case
which
was
not
brought
pursuant
to
the
TCPA
that
“committing a tortious act in Florida under section 48.193(1)(b) 6
6
Subsection (1)(b) is now subsection (1)(a)(2) (July 1, 2013
amendment).
- 14 -
can
occur
through
the
nonresident
defendant’s
telephonic,
electronic, or written communications into Florida,” as long as
the cause of action arises from the communications.
Horowitz, 822 So. 2d 1252, 1260 (Fla. 2002).
v. Bergeron, 851 So. 2d 665 (Fla. 2003).
upon
a
defendant’s
out-of-state
Wendt v.
See also Acquadro
Where the tort is based
communications
into
Florida,
however, “there must be some ‘connexity’ that exists between the
out-of-state communications and the cause of action such that the
cause of action would depend upon proof of either the existence or
the content of any of the communications . . . into Florida.”
Horizon
Aggressive
omitted).
Growth,
L.P.,
421
F.3d
at
1168
(citation
See also Williams Elec. Co. v. Honeywell, Inc., 854
F.2d 389, 394 (11th Cir. 1988) (“For personal jurisdiction to
attach under the ‘tortious activity’ provision of the Florida longarm statute, the plaintiff must demonstrate that the non-resident
defendant ‘committed a substantial aspect of the alleged tort in
Florida.’”) (quoting Watts v. Haun, 393 So. 2d 54, 56 (Fla. 2d DCA
1981)).
In the motion and accompanying sworn Affidavit, Beikmann
asserts
that
he
did
not
individually
initiate
telephone
solicitations to any telephone numbers or initiate ATDS calls.
(Doc. #52-2, ¶¶ 18-21.)
Accordingly, Beikmann argues that there
- 15 -
is no basis to assert personal jurisdiction over him as he did not
commit
a
tort
Beikmann’s
within
testimony
Florida.
stating
In
that
response,
he
did
plaintiff
not
cites
request
that
individuals who were included on the national Do-Not-Call registry
nor Florida residents be excluded from the marketing lists he
procured from certain third-party companies, therefore he was a
complicit TCPA violator.
(Doc. #77-3, p. 36, 39.)
The Court concludes that plaintiff has not met her burden nor
provided sufficient evidence to support a finding of personal
jurisdiction
under
Florida’s
withstand a directed verdict.
long-arm
statute
sufficient
to
There is no allegation in this case
that Biekmann personally placed calls into Florida or engaged in
unsolicited
telephone
conversations
with
any
individuals
in
Florida as was the case in Wendt, and the Court declines to apply
the alter ego exception to Florida’s long-arm statute, discussed
supra.
As
a
result,
the
Court
need
not
determine
whether
exercising personal jurisdiction over Beikmann comports with Due
Process.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.
Defendant Todd Beikmann’s Motion to Dismiss Plaintiff’s
First Amended Complaint for Lack of Personal Jurisdiction (Doc.
- 16 -
#52) is GRANTED and the First Amended Class Action Complaint (Doc.
#37)
is
DISMISSED
without
prejudice
for
lack
of
personal
jurisdiction as to defendant Todd Beikmann ONLY.
2.
The Clerk shall withhold judgment until the conclusion
of this case, but shall terminate Defendant Todd Beikmann on the
docket.
DONE and ORDERED at Fort Myers, Florida, this
of December, 2016.
Copies:
Counsel of Record
- 17 -
19th
day
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