Allen Systems Group, Inc. v. Avon Products, Inc.

Filing 57

ORDER denying 39 Defendant, Avon Products, Inc.'s Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue. Signed by Judge Sheri Polster Chappell on 12/20/2016. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ALLEN SYSTEMS GROUP, INC., a
Delaware corporation
Plaintiff,
v.

Case No: 2:16-cv-121-FtM-38MRM

AVON PRODUCTS, INC.,
Defendant.
/
ORDER1
This matter comes before the Court on Defendant, Avon Products, Inc.'s (“Avon”)
Motion to Dismiss the First Amended Complaint (Doc. #39) filed on July 20, 2016.2
Plaintiff Allen Systems Group, Inc. (“ASG”) filed its Memorandum in Opposition on July
25, 2016.3 (Doc. #40). Thus, the matter is ripe for the Court’s review.

1

Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other documents or websites. These
hyperlinks are provided only for users’ convenience. Users are cautioned that hyperlinked documents in
CM/ECF are subject to PACER fees. By allowing hyperlinks to other websites, this Court does not endorse,
recommend, approve, or guarantee any third parties or the services or products they provide on their
websites. Likewise, the Court has no agreements with any of these third parties or their websites. The
Court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a
hyperlink ceases to work or directs the user to some other site does not affect the opinion of the Court.
2 The Court accepts Avon’s request to incorporate the arguments in its initial Motion to Dismiss (Doc. #10)
into its current Motion. (Doc. #39 at 2). That said, the Court denies Avon’s request to incorporate its Reply
to ASG’s original Memorandum in Opposition (Doc. #25) because no leave has been granted to file a reply
for the currently pending dispute. Similarly, because they were explicitly filed in support of Avon’s Reply
(Doc. #25), the Court will not consider the declarations of M. Brent Byars, Christine Addonizio, and Ian
Mawdsley (Docs. #26, #27, #28).
3 The Court accepts ASG’s request to incorporate the arguments from its initial Memorandum in Opposition
(Doc. #18) into its current responsive memorandum. (Doc. #40 at 1).

I.

BACKGROUND
This case centers on the alleged breach of a contract between two corporations.

ASG is incorporated in Delaware and maintains a principle place of business in Naples,
Florida. (Doc. #37 at 1). Avon is incorporated in New York and maintains a principle
place of business there. (Doc. #37 at 1). ASG licenses software products that enable
technological solutions for cloud computing, management of business services, job
scheduling, data migration, performance management, applications development and
content management. (Doc. #37 at 2). Each of ASG’s products contain elements it
regards as trade secrets. (Doc. #37 at 4). In a mainframe computing environment, ASG
software may be licensed for use on the basis of either (i) the entire mainframe hardware
or (ii) a smaller, partitioned, sub-capacity of the mainframe process (termed “Logical
Partition” or “LPAR”). (Doc. #37 at 4-5).
On September 11, 2006, ASG entered into a Software License Agreement (“SLA”)
with Avon’s predecessor, Avon Cosmetics Ltd. (Doc. #1-1). The SLA and licenses
granted thereunder were then transferred from Avon Cosmetics Ltd. to Avon in 2012.
(Doc. #37 at 5). Substantively, the SLA granted Avon a defined LPAR, and provided that
disputes involving the SLA would be governed by the laws of England and Wales. (Doc.
#37 at 5-6). It also maintained that if Avon wished to increase its LPAR, it would first need
to give ASG prior written notice and pay an upgrade fee. (Doc. #37 at 6).
In February of 2015, ASG conducted a “license verification review” of software
licensed to Avon. (Doc. #37 at 6). The review revealed that Avon exceeded the limits of
its LPAR as per the SLA. (Doc. #37 at 7). Since the review, Avon has refused to purchase
any additional licenses that would bring it into compliance with the SLA. (Doc. #37 at 8).

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In February of 2016, ASG filed its Complaint against Avon, alleging that Avon’s
use of ASG products was in excess of its brokered-for LPAR, and therefore constituted a
breach of contract that should be adjudicated under the laws of the United Kingdom.
(Doc. #1). After Avon filed a Motion to Dismiss (Doc. #10), ASG sought leave to file a
First Amended Complaint. (Doc. #35). Pursuant to the Court’s grant of leave, ASG filed
its First Amended Complaint on June 30, 2016, again alleging breach of contract. (Doc.
#37 at 9-11). In addition to its previous claim that Avon exceeded its allotted LPAR, ASG
alleges that Avon divested its North American business into a separate, privately-held
company called New Avon LLC in March of 2016, and that although ASG’s software
licenses are non-assignable, Avon used them for the benefit of New Avon LLC. (Doc.
#37 at 8-9). ASG argues that this is a ground for breach of contract as well. (Doc. #37
at 10).
Shortly after the First Amended Complaint was filed, Avon again moved to dismiss
for lack of personal jurisdiction and improper venue. (Doc. #39). Alternatively, Avon
requests that the case be transferred to the United States District Court for the Southern
District of New York, where it contends there is proper jurisdiction. (Doc. #39 at 2).
II.

LEGAL STANDARD

The existence of personal jurisdiction is a question of law. See Diamond Crystal
Brands, Inc. v. Food Movers Int'l, Inc., 593 F.3d 1249, 1257 (11th Cir.2010). “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.” Licciardello v. Lovelady, 544 F.3d 1280, 1283 (11th
Cir.2008). A court is obligated to dismiss an action against a defendant over which it has

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no personal jurisdiction. See Posner v. Essex Ins. Co., 178 F.3d 1209, 1214 n. 6 (11th
Cir.1999). When bringing an action against a foreign defendant, a plaintiff bears the initial
burden of “alleg[ing] sufficient facts to make out a prima facie case of jurisdiction.” Id. at
1214. Where this occurs, a defendant may raise a meritorious challenge to plaintiff’s
assertions through “affidavits, documents or testimony[.]” Internet Sols. Corp. v. Marshall,
557 F.3d 1293, 1295 (11th Cir. 2009), certified question answered, 39 So. 3d 1201 (Fla.
2010). If the defendant does so, the burden then moves back to the plaintiff to rebut
defendant’s claims through “affidavits, documents or testimony[.]” Id.
If a court elects to decide a motion to dismiss for lack of personal jurisdiction
without an evidentiary hearing or oral argument, a plaintiff need only establish a prima
facie case for personal jurisdiction over the nonresident defendant. See Madara v.
Hall, 916 F.2d 1510, 1514 (11th Cir.1990). This occurs when a plaintiff presents evidence
to survive a motion for directed verdict. Thomas v. Brown, 504 F. App’x 845, 847 (11th
Cir. 2013). Notably, “[t]he district court must accept the facts alleged in the complaint as
true, to the extent they are uncontroverted by the defendant's affidavits.” Madara, 916
F.2d at 1514. “[W]here the plaintiff's complaint and the defendant's affidavits conflict, the
district court must construe all reasonable inferences in favor of the plaintiff.” Id.
Operationally, the Court employs “a two-step inquiry” determining “whether the
exercise of personal jurisdiction over a non-resident defendant is proper.” Thomas, 504
F. App’x at 847. First, the Court determines “whether the exercise of personal jurisdiction
would be appropriate under the forum state’s long-arm statute.” Id. Then, if that analysis
yields an affirmative answer, the Court examines whether the exercise of jurisdiction
satisfies the Due Process Clause of the Fourteenth Amendment. Id.

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III.
A.

DISCUSSION4

FLORIDA’S LONG-ARM STATUTE
Florida’s long-arm statute lists a number of circumstances wherein a non-resident

defendant submits itself to jurisdiction. See Fla. Stat. §§ 48.193(1)(a). Interpretation of
the statute “is to be strictly construed.” Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d
623, 627 (11th Cir. 1996). “If the forum's long-arm statute provides jurisdiction over one
claim, the district court has personal jurisdiction over the entire case so long as the claims
arose from the same jurisdiction-generating event.” Thomas, 504 F. App'x at 847.
ASG argues that jurisdiction is proper pursuant to Florida’s long-arm statute, which
includes in pertinent part:
(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 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.
…
6.
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:
a.
The defendant was engaged in solicitation or service
activities within this state; or

The Court notes that, other than challenging ASG’s allegation that it is a Delaware company through
Affidavit (Doc. #10-1), Avon has not presented considerable affidavits, documents or testimony disputing
ASG’s allegations in the First Amended Complaint. Because it has not done so, all of ASG’s allegations in
the First Amended Complaint, save as pertains to Avon’s state of incorporation, will be accepted as true.
Madara, 916 F.2d at 1514.
4

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b.
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.
…
7.
Breaching a contract in this state by failing to perform
acts required by the contract to be performed in this state.
Fla. Stat. §§ 48.193(1)(a)(1), (6)(a)-(b), (7).

The Court will address each of these

provisions in turn.
1. CARRYING ON A BUSINESS VENTURE IN FLORIDA
Pursuant to Florida Statute § 48.193(1)(a)(1), a defendant is subject to personal
jurisdiction if it operates, conducts, engages in, or carries on a business in Florida. A
defendant “carries on business” within the meaning of the statute where its collective
activities show a general course of business activity for pecuniary benefit in Florida. See
Dinsmore v. Martin Blumenthal Assocs., Inc., 314 So. 2d 561, 564 (Fla. 1975).
ASG alleges that Avon is “carrying on a business” in Florida because it has a
Florida business license, at least three dozen sales representatives in this district, and
hundreds of sales representatives elsewhere in the State. (Doc. #18 at 6). And, while
ASG cannot pinpoint exact information, it believes that Avon has a substantial amount of
product sales, sales representatives, and customers in Florida—an amount that exceeds
de minimis. (Doc. #18 at 6-8).
Avon does not dispute ASG’s factual allegations, but instead contends that the inState activities that ASG mentions do not support personal jurisdiction because they do
not relate to, or give rise to, the claims raised in the Amended Complaint. (Doc. #10 at
6). Specifically, Avon argues that the sole claim against it concerns the breach of the

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SLA, which is governed by the laws of England and Wales, and that the conduct giving
rise to ASG’s claim occurred in New York. (Doc. #10 at 6-7). Thus, Avon argues that
even if ASG’s claims are true, they do not relate to conduct in Florida.
Parsing the arguments, it is first clear that Avon has failed to present “affidavits,
documents or testimony” that indicate it utilizes the ASG software in New York. See
Internet Sols. Corp., 557 F.3d at 1295. While it is true that Avon has presented evidence
that it is headquartered in New York, the actual usage of ASG software is a discrete
element, and one that Avon relies on to rebut the existence of personal jurisdiction. Avon
cannot bootstrap its arguments regarding physical software usage to evidence of the
company’s incorporation. See Id.
Even so, neither can ASG successfully tether personal jurisdiction under Florida’s
long-arm statute to allegations that Avon carries on business in the State. While Avon
may maintain a broad base of sales representatives in Florida that purchase and sell its
products to end-consumers, this presence does not relate to the claims in the First
Amended Complaint, which hinge on proper compensation for usage of ASG software.
See Fla. Stat. §§ 48.193(1)(a). Likewise, Avon’s contacts with Florida that are germane
to the allegations in the First Amended Complaint do not rise to the level of a general
course of business. Consequently, Avon’s contacts with Florida in relation to the SLA do
not satisfy the “doing business” requirement of Florida’s long-arm statute, and ASG’s
instant theory of jurisdiction is inconsistent with Florida law.
2. CAUSING INJURY IN FLORIDA
Turning to the requirements of Florida Statute § 48.193(1)(a)(6)(a)-(b), the Court
analyzes whether Avon caused injury that arose from an act or omission within Florida,

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either through (i) “solicitation or service activities within [the] state” or (ii) “[p]roducts,
materials, or things processed, serviced, or manufactured by [Avon] [that] were used or
consumed within [Florida] in the ordinary course of commerce, trade or use”.
ASG alleges in the First Amended Complaint that its principle place of business is
in Florida, that Avon contracted with it, and that Avon breached the contract. Furthermore,
ASG argues that because Avon knowingly and intentionally contracted to acquire licenses
and related services in the SLA, it knew damages resulting from breach of contract would
be felt in Florida, where ASG is located. (Doc. #18 at 9). This is not the standard for
long-arm jurisdiction under Florida Statute § 48.193(1)(a)(6)(a)-(b).

Instead, Florida

courts have been consistent that this subsection only applies to personal injury or property
damage, and thus that “[m]ere allegations of economic damage will simply not suffice.”
Identigene, Inc. v. Goff, 774 So. 2d 48, 49 (Fla. 2d DCA 2000) (citing Aetna Life &
Casualty Co. v. Therm–O–Disc, Inc., 511 So.2d 992, 993-94 (Fla.1987)). Because ASG
seeks damages arising from breach of contract, rather than personal injury or property
damage, jurisdiction does not exist under this subsection of Florida’s long-arm statute.
3. FAILURE TO PERFORM ACTS IN FLORIDA
Finally, under Florida Statute § 48.193(1)(a)(7), the Court analyzes whether Avon
failed to perform acts required by contract to be done in Florida. Notably, “[f]ailure to pay
a contractual debt where payment is due to be made in Florida is sufficient to satisfy
Florida's long-arm provision that refers to contractual acts ‘required’ to be performed in
Florida.” Metnick & Levy, P.A. v. Seuling, 123 So. 3d 639, 643 (Fla. 4th DCA 2013).
This is the crux of ASG’s claim in the First Amended Complaint. Avon attempts to
rebut jurisdiction under Florida’s long-arm statute by arguing that the alleged actions that

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violated the SLA took place in New York, and not Florida, and thus that the exercise of
personal jurisdiction would be improper here. (Doc. #10 at 2). As has been mentioned,
because Avon does not support this argument with requisite evidence, it cannot
substantively challenge the allegations in the First Amended Complaint. Even if it could,
this is not the relevant inquiry.

Instead, as the long-arm statute clearly states, the

pertinent standard relates to acts “required by [a] contract to be performed in [Florida.]”
Fla. Stat. § 48.193(1)(a)(7). In this case, this pertains to payments for usage of ASG
software. To this end, ASG has alleged Avon violated the SLA when it failed to make
payments for excessive and unpermitted usage. (Doc. #37 at 9-11). ASG argues that
these allegations are sufficient to satisfy Florida’s long-arm statute because it is
headquartered in Florida and payments pursuant to the SLA were to be made there.
(Doc. #18 at 6).

The Court agrees.

See Sendtec, Inc. v. Cosmetique, Inc., No.

807CV1643T24TGW, 2008 WL 660297, at *3 (M.D. Fla. Mar. 6, 2008) (“Failure to pay a
contractual debt where payment is due to be made in Florida is sufficient to satisfy §
48.193(1)[(a)(7)].”) (citing Hartcourt Companies v. Hogue, 817 So.2d 1067, 1070 (Fla. 5th
DCA 2002)).
While the SLA contains no specific requirement that payments be made to ASG’s
principal place of business in Florida, the Court may nonetheless presume Florida to be
a location for payments due. See Hartcourt Companies, 817 So. 2d at 1070 (presuming
the payee’s place of business as the location for repayments when the contract fails to
specify such location). Thus, because the ASG alleges that Avon failed to make required
payments under the SLA, the Court concludes that its claims fall within the reach of
Florida Statute § 48.193(1)(a)(7).

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B.

DUE PROCESS
Once jurisdiction under the long-arm statute has been satisfied, the final analysis

centers on the twin due process inquiries of whether “(1) the defendant [has] certain
minimum contacts with the forum state, and that (2) the exercise of jurisdiction over the
defendant satisfies ‘traditional notions of fair play and substantial justice.’” Sculptchair,
Inc., 94 F.3d at 626 (11th Cir. 1996) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310,
316 (1945)).
1. MINIMUM CONTACTS
The Eleventh Circuit employs a three-part test to determine whether the minimum
contacts requirement is met:
First, the contacts must be related to the plaintiff’s cause of
action or have given rise to it. Second, the contacts must
involve some act by which the defendant purposefully avails
itself of the privilege of conducting activities within the forum .
. . thus invoking the benefits and protections of the laws.
Third, the defendant’s contacts with the forum must be such
that the defendant should reasonably anticipate being haled
into court there.
Vermeulen v. Renault, U.S.A., Inc., 985 F.2d 1534, 1546 (11th Cir. 1993) (internal
citations and quotations omitted).
First, the Court finds that a sufficient amount of Avon’s contacts with Florida are
directly related to the SLA so as to fall within the bounds of the due process clause.
Beyond the allegations of the First Amended Complaint, ASG meets this threshold by
presenting an affidavit stating that Avon has solicited services from ASG’s Florida office,
solicited additional software licenses from ASG’s Florida office, negotiated existing
license terms with personnel at ASG’s Florida office, and has made payments to ASG in
Florida. (Doc. 18-1 at 1-2).

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Avon attempts to rebut this finding by arguing that its contacts with Florida cannot
be related because any breach that actually occurred, happened through the use of ASG
software that was physically installed and used in New York. (Doc. #10 at 6). Consistent
with the Court’s findings herein, these naked arguments fail. Because this controversy
turns on Avon’s alleged failure to pay required license and maintenance fees for ASG
software, and because the Court may presume that those payments were to be submitted
to ASG in Florida, it is clear that Avon’s contacts with Florida are sufficiently related to
ASG’s claim.
The next inquiry is whether Avon has purposefully availed itself of the privilege of
conducting activities in Florida. Vermeulen, 985 F.2d at 1546. The “purposeful availment
requirement ensures that a defendant will not be haled into a jurisdiction solely as a result
of random, fortuitous, or attenuated contacts, or of the unilateral activity of another party
or a third person.” Burger King Corp., 471 U.S. at 475 (internal quotations and citations
omitted). Thus, purposeful availment can be found where “business activities reach out
beyond one state and create continuing relationships and obligations with citizens of
another state[.]” Travelers Health Ass'n v. Com. of Va. ex rel. State Corp. Comm'n, 339
U.S. 643, 647, 70 S. Ct. 927, 929, 94 L. Ed. 1154 (1950). One such example of purposeful
availment is a “direct solicitation by a foreign defendant of [a] business . . . where . . . a
continuing relationship . . . [is] contemplated.” Sea Lift, Inc., 792 F.2d at 994.
To this end, where a foreign company purposefully directs its activities toward a
forum state, a finding of personal jurisdiction is appropriate for a number of reasons.
Notably,
. . . . where individuals purposefully derive benefit from their
interstate activities, it may well be unfair to allow them to

11

escape having to account in other States for consequences
that arise proximately from such activities; the Due Process
Clause may not readily be wielded as a territorial shield to
avoid interstate obligations that have been voluntarily
assumed. And because modern transportation and
communications have made it much less burdensome for a
party sued to defend himself in a State where he engages in
economic activity, it usually will not be unfair to subject him to
the burdens of litigating in another forum for disputes relating
to such activity.
Burger King Corp., 471 U.S. at 473. (internal citations and quotations omitted).
The facts of this dispute plainly support a finding that Avon purposefully availed
itself of the privilege of conducting business in Florida. First, ASG alleges that Avon
entered into an ongoing licensing contract, the SLA, which governed the relationship
between the parties for approximately nine (9) years. (Doc. #37 at 2-10). ASG further
alleges that Avon breached the SLA by exceeding LPAR usage, and also by using ASG
software for the benefit of parties outside of the SLA. (Doc. #37 at 10). During the
duration of the parties’ relationship, ASG alleges that it has maintained its principle place
of business in Florida, and on occasion Avon contacted ASG there to request support or
obtain license keys for ASG software. (Doc. 18-1 at 3). ASG further alleges that Avon
has engaged with ASG representatives in Florida to negotiate contractual terms, and
where ASG licenses were transferred from Avon’s UK affiliate to its American entity.
(Doc. #18-1 at 2). Avon has also made payments to ASG in Florida for usage of licenses
and maintenance service. (Doc. #18-1 at 2).
To be sure, the Eleventh Circuit has found that a choice of law clause that invokes
the law of a foreign jurisdiction constitutes an indication that a party did not avail itself of
the benefits and protections of Florida law. Sea Lift, Inc., 792 F.2d at 994. Although this
factor is recognized, it is outweighed by Avon’s contacts with ASG in Florida.

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Consequently, the Court finds that Avon has intentionally availed itself of the privilege of
engaging in business here.
These facts also bear on whether Avon could reasonably expect to be haled into
court in Florida.

“When a corporation purposefully avails itself of the privilege of

conducting activities within the forum State, it has clear notice that it is subject to suit
there . . . . ” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)
(internal citations and quotations omitted). Given the nature of Avon’s business ties in
Florida, including its relationship with ASG as well as other commercial ventures, there is
little doubt that it has purposefully availed itself of the privilege of conducting activities in
the State. As such, it is unreasonable for Avon to claim that it did not expect to be subject
to litigation here.
2. TRADITIONAL NOTIONS OF FAIR PLAY AND SUBSTANTIAL JUSTICE
Avon argues that exercising personal jurisdiction over it would offend traditional
notions of fair play and substantial justice. In determining the fairness and
reasonableness of a forum's exercise of jurisdiction, a court must consider, among other
things, “the burden on the defendant, the forum's interest in adjudicating the dispute, the
plaintiff's interest in obtaining convenient and effective relief and the judicial system's
interest in resolving the dispute.” Licciardello, 544 F.3d at 1288.
As to Avon’s burden, the Supreme Court has been clear that “because modern
transportation and communications have made it much less burdensome for a party sued
to defend himself in a State where he engages in economic activity, it usually will not be
unfair to subject him to the burdens of litigating in another forum for disputes relating to
such activity.” Burger King Corp., 471 U.S. at 474 (internal citations omitted).

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Against this backdrop, Avon maintains a commercial base of hundreds of
representatives in Florida. (Doc. #18-2 at 1-68). While Avon’s relationship with these
representatives does not give rise to general or specific jurisdiction on its own, it does
cast a shadow on the argument that Avon would be prejudiced by being forced to litigate
in Florida. Moreover, as is illustrated herein, Avon’s ties to ASG in Florida are robust,
and their depth further indicates that Avon would not be overtly prejudiced by litigating
here.

Finally, an ever-increasing wave of technology relieves, and in some cases

obviates, the burdens of transportation and communication that Avon would incur by
litigating in Florida. Thus, the exercise of personal jurisdiction in this matter would not so
burden Avon as to offend traditional notions of fair play and substantial justice.
Second, Avon argues that because the SLA “is governed by the laws of England
and Wales rather than of Florida, this State lacks an interest in adjudicating this dispute,
and there are no fundamental substantive social policies implicated in this case.” (Doc.
#10 at 7). That the SLA is governed by foreign laws does not change the fact that ASG’s
principle place of business is located within Florida. Given this crucial factor, Florida has
a substantial interest in adjudicating damages allegedly inflicted on a Florida business by
an out-of-state actor. See Sculptchair, Inc., 94 F.3d at 632; see also Burger King Corp.,
471 U.S. at 473 (1985). As such, the Court holds that this interest outweighs any
indication to the contrary found in the SLA’s choice of law provision.
Third, the Court confronts the question of ASG’s interest in obtaining convenient
and effective relief. Avon attempts to divert this inquiry by alleging that ASG cannot show
that it cannot obtain relief in another court with jurisdiction over Avon, or that it would be
inefficient to litigate there. ASG is not required to present such a showing. Rather, it is

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well established that a Florida plaintiff, such as ASG, has an undeniable interest in
litigating in its chosen forum. See Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339,
1358 (11th Cir. 2013); see also Posner, 178 F.3d at 1221.
Lastly, it is clear that the interstate judicial system’s interest in obtaining a fair and
efficient resolution of the issues before the Court are promoted by litigating the claims in
Florida.

This interest is served because Florida is where the alleged failure to

compensate ASG for excessive LPAR usage occurred, and where several witnesses
reside. See Morris v. SSE, Inc., 843 F.2d 489, 495 (11th Cir. 1988). Among these
witnesses are ASG employees who may testify about the software’s functionality,
licensing, maintenance, contracts with Avon, and communications with Avon. (Doc. #181 at 2-3). And, while witnesses and evidence for Avon may exist in New York, the Court
finds no indication that the Southern District of New York is in a better position to
adjudicate this matter.
In sum, the allegations in the First Amended Complaint support the extension of
Florida’s long-arm statute over Avon, such that a finding of personal jurisdiction would not
offend Avon’s due process interests.5
Accordingly, it is now
ORDERED:
Defendant, Avon Products, Inc.'s Motion to Dismiss for Lack of Personal
Jurisdiction and Improper Venue (Doc. #39) is DENIED.

5

As a result of the analysis herein, the Court also finds that pursuant to 28 U.S.C. § 1391(b)(2), venue in
the Middle District of Florida is proper because a substantial part of the events giving rise to the claim
occurred in the district, namely Avon’s alleged failure to properly compensate ASG for its excessive usage
of the ASG software.

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DONE and ORDERED in Fort Myers, Florida this 20th day of December, 2016.

Copies: All Parties of Record

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