Dollar Rent A Car, Inc. et al v. Westover Car Rental, LLC et al

Filing 64

OPINION AND ORDER granting in part and denying in part 59 Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint for Lack of Personal Jurisdiction and Alternative Motion to Transfer Venue. Defendants' Motion to Dismi ss Plaintiffs' Second Amended Complaint for Lack of Personal Jurisdiction is GRANTED. Defendants' Alternative Motion to Transfer Venue is DENIED. The Clerk shall terminate all deadlines and close the case. Signed by Judge John E. Steele on 11/16/2017. (KP)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DOLLAR RENT A CAR, INC., an
Oklahoma
corporation,
THRIFTY RENT-A-CAR SYSTEM,
INC.,
an
Oklahoma
corporation, and THE HERTZ
CORPORATION,
a
Delaware
Corporation,
Plaintiffs,
v.

Case No: 2:16-cv-363-FtM-29CM

WESTOVER CAR RENTAL, LLC, a
Delaware limited liability
company, PHILIP R. MOOAR,
CARL
P.
PALADINO,
JOEL
CASTLEVETERE,
ENRICO
D’ABATE,
and
MICHAEL
G.
DILLON,
Defendants.
OPINION AND ORDER
This matter comes before the Court on Defendants’ Motion to
Dismiss Plaintiffs’ Second Amended Complaint for Lack of Personal
Jurisdiction and Alternative Motion to Transfer Venue (Doc. #59)
filed on June 6, 2017.

Plaintiffs filed a Response in Opposition

(Doc. #60) on June 20, 2017, and Defendants filed a Reply (Doc.
#63)

on

June

30,

2017.

For

the

reasons

set

forth

below,

Defendants’ Motion to Dismiss is granted without prejudice.
I.
This case arises out of a terminated franchise relationship
in the rental car industry.

Plaintiffs Dollar Rent a Car, Inc.

(Dollar), Thrifty Rent-a-Car System, Inc. (Thrifty), and The Hertz

Corporation (Hertz) filed a six-count Second Amended Complaint
(Doc.

#58)

Westover’s

against
five

Westover

individual

Car

Rental,

owners,

LLC

Philip

R.

(Westover)
Mooar,

Carl

and
P.

Paladino, Joel Castlevetere, Enrico D’Abate, and Michael G. Dillon
(collectively, the Individual Defendants).

The first five counts

allege breach of various agreements by various defendants, while
the sixth count seeks a declaratory judgment as to Defendants’
post-termination obligations not to compete.

The agreements at

issue are: (1) Westover’s March 21, 2006 License Agreements with
Dollar (Doc. #58-1) and Thrifty (Doc. #58-4) and a December 20,
2006 Amendment to those Agreements (Doc. #58-2) (collectively, the
License

Agreements);

(2)

an

April

30,

2010

Revised

Personal

Guaranty Agreement (the Personal Guaranty) that the Individual
Defendants executed with Dollar (Doc. #58-3); and (3) a July 31,
2015 Vehicle Purchase Participation Agreement (the VPPA) between
Westover and Hertz (Doc. #58-5). 1
Subject
citizenship. 2
Amended

matter

jurisdiction

is

premised

on

diversity

of

With respect to personal jurisdiction, the Second

Complaint

avers

that

Westover

and

each

Individual

1

By way of background, it appears Hertz acquired Dollar and
Thrifty in or around May 2013. (Doc. #60-1, pp. 3, 11.)
2

The Court dismissed Plaintiffs’ original Complaint (Doc. #1) and
First Amended Complaint (Doc. #35) without prejudice for lack of
subject matter jurisdiction because the allegations did not leave
clear whether Westover LLC was a citizen of Florida, Oklahoma, or
Delaware, as would destroy complete diversity of citizenship.
(Docs. ## 34, 55.)
The Second Amended Complaint adequately
alleges that all Defendants are New York citizens.
- 2 -

Defendant contractually consented to jurisdiction in Florida.

As

to Westover only, the Complaint also alleges that the Court has
specific

personal

jurisdiction

pursuant

to

two

provisions

in

Florida’s long-arm statute, Fla. Stat. § 48.193.
Defendants move to dismiss the Second Amended Complaint on
the ground that the Court lacks personal jurisdiction over Westover
and each Individual Defendant.

Alternatively, Defendants request

the case be transferred to the Buffalo Division of the United
States

District

Court

for

the

Western

District

of

New

York.

Plaintiffs oppose both dismissal and transfer but believe any
transfer should be to Tulsa, Oklahoma.
II.
The jurisdictional basics are well established.

To hear a

case, a federal court must have jurisdiction over both the subject
matter of the action and the parties to the action.
v. Marathon Oil Co., 526 U.S. 574, 584, (1999).

Ruhrgas AG

Absent either,

“the court is powerless to proceed to an adjudication.”

Id.

A federal court sitting in diversity may exercise personal
jurisdiction

over

jurisdiction

is

an

out-of-state

authorized

under

defendant
the

forum

if

(1)

personal

state’s

long-arm

statute and (2) the exercise of such jurisdiction comports with
constitutional due process.

Carmouche v. Tamborlee Mgmt., Inc.,

789 F.3d 1201, 1203 (11th Cir. 2015); Licciardello v. Lovelady,
544 F.3d 1280, 1283 (11th Cir. 2008).
statute

provides

two

bases

for

- 3 -

the

“The Florida long-arm
exercise

of

personal

jurisdiction: specific and general jurisdiction.”

PVC Windoors,

Inc. v. Babbitbay Beach Const., N.V., 598 F.3d 802, 808 (11th Cir.
2010).

“[G]eneral jurisdiction refers to the power of the forum

state to exercise jurisdiction in any cause of action involving a
particular defendant, regardless of where the cause of action
arose,” id. at 808 n.8, and is rooted in the fact that a defendant
has “engaged in substantial and not isolated activity within
[Florida].”

Fla. Stat. § 48.193(2).

Specific jurisdiction, in

contrast, refers to “jurisdiction over causes of action arising
from or related to a defendant’s actions within the forum.”

PVC

Windoors, 598 F.3d at 808; see generally Fla. Stat. § 48.193(1).
Unlike subject matter jurisdiction, “the requirement that a
court have personal jurisdiction may be intentionally waived, or
for various reasons a defendant may be estopped from raising the
issue.”

Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee,

456 U.S. 694, 703, 704 (1982).
expressly

consent

to

a

That is, a party may impliedly or

particular

court’s

exercise

of

jurisdiction, irrespective of whether personal jurisdiction would
otherwise be authorized under the applicable long-arm statute and
satisfy due process.

Id. at 703; see also Ruhrgas, 526 U.S. at

584; Alexander Proudfoot Co. World Headquarters v. Thayer, 877
F.2d 912, 919-21 (11th Cir. 1989).
A plaintiff suing a nonresident defendant bears both the
initial

burden

of

alleging

a

prima

facie

case

of

personal

jurisdiction and, if that jurisdiction is challenged, the ultimate

- 4 -

burden of establishing that its exercise is proper.

Louis Vuitton

Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1350 (11th Cir. 2013);
Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1217 (11th
Cir. 2009).

If the defendant raises more than mere “conclusory

assertions” that personal jurisdiction is lacking, 3 the plaintiff
must then “produc[e] evidence supporting jurisdiction.”

Mosseri,

736 F.3d at 1350; see also Posner v. Essex Ins. Co., 178 F.3d 1209,
1215 (11th Cir. 1999).
III.
The Second Amended Complaint avers that the Court has personal
jurisdiction over Westover and the Individual Defendants because
all have contractually consented to – and waived the right to
challenge - personal jurisdiction in Florida.
18.)

(Doc. #58, ¶¶ 17-

The Complaint asserts that personal jurisdiction exists as

to Westover for the additional reason that Westover “has engaged
in actions . . . that constitute sufficient contacts with the State
of Florida.” 4
contractually

(Id. ¶ 17.)
consented

to

Defendants disagree that they have
personal

jurisdiction

in

Florida.

Defendants have also filed affidavits disputing the contention

3

Typically, the defendant must submit affidavit evidence
“contain[ing] specific declarations within the affiant’s personal
knowledge.” Mosseri, 736 F.3d at 1350.
4

While this sentence appears speak to the Court’s exercise of
general personal jurisdiction over Westover, Plaintiffs’ Response
in Opposition to the Motion to Dismiss leaves clear that Plaintiffs
assert only specific personal jurisdiction.
In any event, the
Court finds no basis in the Second Amended Complaint to conclude
that Westover “engaged in substantial and not isolated activity”
in Florida, as required by Fla. Stat. § 48.193(2).
- 5 -

that the Court has specific jurisdiction over Westover pursuant to
Florida’s long-arm statute.
Erie principles 5 dictate that when, as here, a federal court
sitting in diversity is asked to enforce a contractual jurisdiction
clause, the court must assess whether such a clause is enforceable
under the forum state’s law.
919.

Alexander Proudfoot, 877 F.2d at

However, as with any challenge to personal jurisdiction, the

district court first “must determine ‘whether the allegations of
the complaint state a cause of action.’”

PVC Windoors, Inc. v.

Babbitbay Beach Const., N.V., 598 F.3d 802, 808 (11th Cir. 2010)
(quoting Wendt v. Horowitz, 822 So.2d 1252, 1260 (Fla. 2002)); see
also Taylor v. Moskow, --- Fed. App’x ---, 2017 WL 4899742, at *2
(11th Cir. Oct. 31, 2017) (per curiam) (affirming the district
court’s finding that because the complaint “failed to state a claim
for conspiracy, that count was beyond the reach of Florida's longarm statute”).
A.

The Court thus begins there.

Pleading Sufficiency of the Second Amended Complaint
1.

Breach of License Agreements
(Counts I, II, & V)

and

Personal

Guaranty

Counts I, II, and V allege breaches of the License Agreements
and Personal Guaranty.

Count I is based on Westover’s alleged

breach of its obligation to pay Dollar/Thrifty sums due under the
License Agreements.

Counts II and V allege that the Individual

Defendants

the

5

breached

Personal

Guaranty

Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).
- 6 -

by,

respectively,

refusing compensate Dollar/Thrifty for the damages suffered as a
result of Westover’s breaches of the License Agreements, and
failing to provide Plaintiffs with timely notice that Westover was
terminating the License Agreements. 6
Under Florida law, “[t]he elements of a breach of contract
action are (1) a valid contract; (2) a material breach; and (3)
damages.”

Beck v. Lazard Freres & Co., LLC, 175 F.3d 913, 914

(11th Cir. 1999); Abbott Labs., Inc. v. Gen. Elec. Capital, 765
So.

2d

737,

740

(Fla.

5th

DCA

2000).

Defendants

have

not

challenged the pleading sufficiency of Counts I, II, and V, and
the Court is satisfied that the Second Amended Complaint adequately
alleges breach of the License Agreements and Personal Guaranty.
2.

Declaratory Judgment (Count VI)

Count VI seeks a declaration, pursuant to 28 U.S.C. § 2201,
as to the parties’ obligations following Westover’s termination of
the

franchise

relationship.

Specifically

Dollar

and

Thrifty

request a declaration that, contrary to Defendants’ assertion that
they have been released from any such obligation, Defendants are
in fact bound to abide by the License Agreements’ post-termination
covenants not to compete.
“[A] declaratory judgment may only be issued in the case of
an ‘actual controversy.’ That is, under the facts alleged, there

6

Count IV alleges a breach of the Personal Guaranty arising out
of the Individual Defendants’ failure to compensate Hertz for the
damages suffered as a result of Westover’s alleged breach of the
VPPA. The adequacy of this claim is discussed below, in connection
with the VPPA breach claim (Count III).
- 7 -

must

be

a

substantial

continuing

having adverse legal interests.”
1552 (11th Cir. 1985).

controversy

between

parties

Emory v. Peeler, 756 F.2d 1547,

Based on the allegations in the Second

Amended Complaint, the Court finds there exists a substantial and
continuing “actual controversy” between the parties as to the
applicability of the non-compete provisions. 7

Plaintiffs have

thus adequately stated a claim for declaratory relief.
3.

Breach of the VPPA (Counts III and IV)

Count III alleges that the VPPA required Westover “to purchase
and pay for a certain number of vehicles that were agreed to
between Westover and Dollar/Thrifty” (Doc. #58, ¶ 51), and that
“[a]fter agreeing to purchase 70 vehicles in one round and 65
vehicles in another round, Westover attempted to cancel those
orders and refused to take delivery or pay for them.”

(Id. ¶ 52.)

Count

failure

IV

is

based

on

the

Individual

Defendants’

to

compensate Hertz for the damages caused by this alleged breach, as
required under the Personal Guaranty.
While Defendants have not exactly argued that Count III fails
to state a claim, they do contend that the VPPA imposes no
obligation on Westover to purchase any vehicles and, in fact,
“expressly prohibits any orders of vehicles.”

(Doc. #59, p. 14.)

According to Defendants, the VPPA “is only an agreement to agree
in the future regarding vehicle orders and the terms thereof.

7

The Court observes that the Amendment to the License Agreement
does contain a limited waiver of the non-compete provision. (Doc.
#58-2, ¶ 2.)
- 8 -

Whatever orders and/or payments for vehicles that may have been
made by Westover were . . . [made] pursuant to a separate written
vehicle supply agreement which has not been produced by Plaintiffs
and which is not a part of this lawsuit.” 8

Id.

Defendants, in

other words, do not believe any non-performance breached the VPPA.
Based on the available materials, the Court agrees.

Even

assuming the VPPA is an enforceable contract under Florida law 9
and accepting as true the allegation that Westover placed an order
for vehicles which it later cancelled, that cancellation did not
materially breach the VPPA.

To the contrary, the express terms

of the VPPA leave clear that Westover’s failure to “purchase its
full allocation of vehicles” instead “constitute[s] a material
default under the License Agreement.”
added).)

(Doc. #58-5 (emphasis

Since there was no breach of the VPPA (Count III), the

Individual Defendants in turn had no obligation under the Personal
Guaranty to compensate Hertz (Count IV).
Because the Second Amended Complaint does not state a claim
for a material breach of the VPPA, Counts III and IV are “beyond
the reach of Florida’s long-arm statute.”

PVC Windoors, 598 F.3d

8

The VPPA states that “Hertz and [Westover] shall mutually agree
in writing regarding the number, make and model of vehicles to be
allocated” to Westover under a separate “vehicle supply agreement”
and prohibits Westover from submitting any orders, absent such
mutual agreement. (Doc. #58-5.)
9

Under Florida law, “[a] mere agreement to agree ‘is unenforceable
as a matter of law.” Aldora Aluminum & Glass Prod., Inc. v. Poma
Glass & Specialty Windows, Inc., 683 Fed. App’x 764, 768 (11th
Cir. 2017) (per curiam) (quoting ABC Liquors, Inc. v. Centimark
Corp., 967 So. 2d 1053, 1056 (Fla. 5th DCA 2007)).
- 9 -

at 809; Schwab v. Hites, 896 F. Supp. 2d 1124, 1134 (M.D. Fla.
2012); cf. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 463–64
(1985)

(“The

State

of

Florida's

long-arm

statute

extends

jurisdiction to any person . . . who, inter alia, breaches a
contract in this state by failing to perform acts required by the
contract to be performed in this state, so long as the cause of
action arises

from

the

alleged

contractual

breach.”

(emphasis

added and internal alterations and quotation omitted)).

As no

cause of action involving the VPPA is properly before the Court,
the Court will not consider that agreement in assessing personal
jurisdiction.
The Court now turns to the merits of Plaintiffs’ claim that
all Defendants have contractually consented to and/or waived the
right

to

challenge

the

exercise

of

personal

jurisdiction

in

Florida.
B.

Consent to Personal Jurisdiction in Florida
1.

Fla. Stat. § 48.193(1)(a)(9)

“[T]here
exercise

of

was

a

time

jurisdiction

when

Florida

did

not

based

upon

consent

authorize

alone.”

the

Corp.

Creations Enters. LLC v. Brian R. Fons Attorney at Law P.C., 225
So. 3d 296, 300 (Fla. 4th DCA 2017).

Indeed, prior to 1989, a

“provision for submission to in personam jurisdiction merely by
contractual

agreement”

was

[Florida’s] long arm statute.”
2d 540, 543 (Fla. 1987).

“[c]onspicuously

absent

from

McRae v. J.D./M.D., Inc., 511 So.

The Florida legislature has since amended

- 10 -

the long-arm statute to “grant[] parties . . . the right to confer
personal jurisdiction by agreement.”

Jetbroadband WV, LLC v.

MasTec N. Am., Inc., 13 So. 3d 159, 163 (Fla. 3d DCA 2009).
However, one does not submit to the jurisdiction of the
Florida courts merely by signing an agreement containing a clause
conferring such jurisdiction.

Instead, the agreement must comply

with all the requirements of Fla. Stat. § 685.101 and Fla. Stat.
§ 685.102.

See Fla. Stat. § 48.193(1)(a)(9); Corp. Creations, 225

So. 3d at 301 (“[S]ections 685.101 and 685.102 allow parties to
confer jurisdiction on the courts of Florida by contract alone if
certain

requirements

are

met.”).

Specifically,

in

order

to

satisfy Florida’s statutory requirements for consent to personal
jurisdiction:
the contract, agreement, or undertaking must
(1) include a choice of law provision
designating Florida Law as the governing law,
(2) include a provision whereby the nonresident agrees to submit to the jurisdiction
of the courts of Florida, (3) involve
consideration of not less than $250,000, (4)
not violate the United States Constitution,
and
(5)
either
bear
a
substantial
or
reasonable relation to Florida or have at
least one of the parties be a resident of
Florida or incorporated under its laws.
Jetbroadband, 13 So. 3d at 162; see also Hamilton v. Hamilton, 142
So. 3d 969, 971–72 (Fla. 4th DCA 2014).

If these five requirements

are met, then “personal jurisdiction may be exercised and the
courts may dispense with the more traditional minimum contacts
analysis.”

Corp. Creations, 225 So. 3d at 300.

- 11 -

In sum, under Florida law, a Florida jurisdiction conferral
clause is a necessary, but not sufficient, component of contractual
consent to the court’s exercise of specific personal jurisdiction
over a non-Florida defendant.
2.

The License Agreements and the Personal Guaranty

None of the agreements at issue here contains a provision by
which Westover or any Individual Defendant expressly “agrees to
submit to jurisdiction of the courts of Florida.”

The agreements

do, however, all contain a venue provision - known as a “floating
forum

selection

clause”

–

under

which

Defendants

consent

to

jurisdiction “IN THE UNITED STATES DISTRICT COURT IN THE FEDERAL
DISTRICT WHERE THE PRINCIPAL PLACE OF BUSINESS OF [DOLLAR OR
THRIFTY] IS LOCATED IF DIFFERENT FROM [Tulsa, Oklahoma].”

It is

undisputed that Estero, Florida – the current principal place of
business of Dollar and Thrifty - is located here, in the Fort Myers
Division of the Middle District of Florida.

The agreements also

contain provisions by which the parties “IRREVOCABLY WAIVE ANY
OBJECTIONS WHICH THEY MAY NOW OR HEREAFTER HAVE TO THE PERSONAL
JURISDICTION OR VENUE OF ANY SUIT, ACTION OR PROCEEDING, ARISING
OUT OF OR RELATING TO THIS AGREEMENT, BROUGHT IN SUCH COURTS.”
The operative question is thus whether either a floating forum
selection clause or a personal jurisdiction waiver amounts to “a
provision

whereby

the

non-resident

agrees

jurisdiction of the courts of Florida.”

to

submit

to

the

Plaintiffs argue that

they do, but have not presented any binding precedent to support

- 12 -

that position.

Given that “Florida's long-arm statute is to be

strictly construed,” Sculptchair, Inc. v. Century Arts, Ltd., 94
F.3d 623, 627 (11th Cir. 1996), the Court has its doubts particularly since no Florida connection existed when the parties
executed

these

agreements. 10

Cf.

McCrae,

511

So.

2d

at

543

(disallowing the exercise of personal jurisdiction on grounds not
explicitly set forth in Florida’s long-arm statute).
Ultimately, however, the Court need not resolve this issue.
Even

if

a

floating

forum

selection

clause

and/or

a

personal

jurisdiction waiver does satisfy the “agrees to submit to the
jurisdiction of Florida” requirement, Plaintiffs’ consent argument
still fails, since none of the agreements at issue also “include[s]
a choice of law provision designating Florida Law as the governing
law.” 11

The Personal Guaranty states that it is to be “governed

by the laws of the State of Oklahoma.”

(Doc. #58-3, p. 3.)

The

Dollar License Agreement states that Oklahoma law governs the
“existence, validity, construction and sufficiency of performance

10

The Court notes, however, that floating forum selection clauses
have been deemed enforceable under Florida law for purposes of
assessing whether a lawsuit was filed in a proper venue. Lopez
v. United Capital Fund, LLC, 88 So. 3d 421, 425 (Fla. 4th DCA
2012); Bovis Homes, Inc. v. Chmielewski, 827 So. 2d 1038, 1039
(Fla. 2d DCA 2002).
11

It is also not clear whether the $250,000 consideration
requirement is met. Fla. Stat. § 685.101(1). Plaintiffs claim
that “there can be no question that the obligations under the
contracts at issue, pursuant to which Westover undertook the
obligation to operate Dollar and Thrifty businesses for a term of
10 years . . . exceeded $250,000” (Doc. #60, p. 18), but they have
not presented the Court with any supporting figures.
- 13 -

of this Agreement,” except as to issues implicating the non-compete
provision, which are “governed by the laws of the state where
[Westover is] operating,” i.e. New York.

(Doc. #58-1, ¶ 24.1.)

Oklahoma law also governs the Thrifty License Agreement (Doc. #584, ¶ 10.9.)

The Amendment makes certain changes to those License

Agreements but keeps Oklahoma as the governing law. 12

(Doc. #58-

2, ¶ 18.)
Because contractual consent is the only basis for personal
jurisdiction over the Individual Defendants raised in the Second
Amended Complaint (Doc. #58, ¶ 18), each Individual Defendant is
now dismissed without prejudice for lack of personal jurisdiction.
The Court now turns to whether there exists another basis on which
to assert specific personal jurisdiction over Westover.
C.

Specific Personal Jurisdiction over Westover
Plaintiffs

jurisdiction

argue

over

that

Westover

the

Court

under

has

Sections

specific

personal

48.193(1)(a)(1)

48.193(1)(a)(7) of Florida’s long-arm statute.

and

For the reasons

that follow, the Court disagrees.

12

The VPPA does, in contrast, contain a Florida choice-of-law
provision but, unlike the License Agreements and Personal
Guaranty, it does not contain a floating forum selection clause or
personal jurisdiction waiver. Plaintiffs’ briefing advances the
novel argument that the VPPA, License Agreements, and Personal
Guaranty should be viewed as one contractual “undertaking” for
purposes of satisfying all of the statutory requirements for
jurisdictional consent. The Court need not determine whether this
“one undertaking” argument has merit, since as discussed above,
the VPPA cannot be considered in assessing the Court’s personal
jurisdiction.
- 14 -

(1)

Section 48.193(1)(a)(1) – Conducting Business in Florida

One who “[o]perates, conduct[s], engag[es] in, or carr[ies]
on a business or business venture in [Florida]” submits himself to
the in personam jurisdiction of Florida courts.
48.193(1)(a)(1).

Fla. Stat. §

This provision is strictly construed, and the

overarching question is whether the facts “show a general course
of

business

activity

in

the

state

for

pecuniary

benefit.”

Sculptchair, 94 F.3d at 627 (11th Cir. 1996); Travel Opportunities
of Fort Lauderdale, Inc. v. Walter Karl List Mgmt., Inc., 726 So.
2d 313, 314 (Fla. 4th DCA 1998).

Relevant factors to 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. v. Rothstein–Kass, P.A., 421 F.3d 1162, 1167 (11th Cir. 2005)
(citations omitted).
The Second Amended Complaint avers that the Court has personal
jurisdiction over Westover under this subsection because Westover
engaged in certain business actions that “constitute sufficient
contacts” with Florida.

(Doc. #58, p. 5.)

In moving to dismiss,

Defendants stress that “Westover’s business consists of renting
cars and parking cars in the Western New York area,” and that not
only has Westover never maintained a Florida office or business
presence,
residents.

it

never

actively

solicited

business

from

Florida

(Doc. #59, pp. 11-12; see also Docs. ## 59-1; 59-2;

- 15 -

59-3; 59-4; 59-5.)

Plaintiffs do not challenge these contentions,

let alone rebut them with any evidence of a Florida business
license or presence.
jurisdiction

Instead, Plaintiffs argue that personal

appropriately

lies

under

Section

48.181(1)(a)(1)

because Westover: (i) sent a representative to Florida for a “an
intensive three-day training program . . . designed to boost
licensee

sales,”

(ii)

“directed”

the

“termination

of

its

franchises” to Florida, and (iii) entered into an agreement for
the purchase of vehicles (the VPPA) after Hertz had relocated to
Florida.

(Doc. #60, pp. 2-3.)

None of this sufficient.

That Westover sent a representative

to Florida for a training program does not rise to the level of
demonstrating a general course of business activity in Florida for
pecuniary benefit.

Aronson v. Celebrity Cruises, Inc., 30 F.

Supp. 3d 1379, 1385-86 (S.D. Fla. 2014); Insight Instruments, Inc.
v. A.V.I.-Advanced Visual Instruments, Inc., 44 F. Supp. 2d 1269,
1271 (M.D. Fla. 1999).

Indeed, it was Hertz who requested the

presence of a Westover representative at the training program –
presumably so Westover could increase its business in New York,
where Westover is based.

(See Doc. #60-3.)

Nor does the fact

that Westover sent a letter terminating the franchise relationship
to Florida mean that Westover was broadly engaged in a Florida

- 16 -

business venture. 13

Virgin Health Corp. v. Virgin Enters. Ltd.,

393 F. App’x 623, 626 (11th Cir. 2010) (per curiam) (sending cease
and desist letter to Florida did not show defendant “carried on
business” in Florida).
Plaintiffs have failed to carry their burden of establishing
that Westover carried on a business or a business venture in
Florida.

Horizon, 421 F.3d at 1167-68 (affirming finding that

defendant was not “conducting business” in Florida where defendant
“physically performed all its work from its California offices”
and earned less than five percent of its gross revenue from Florida
residents); Parker v. Century 21 J. Edwards Real Estate, 183 F.
App’x 869, 871 (11th Cir. 2006) (per curiam) (exchanging three
emails with a Florida resident and using Florida-based freight
forwarders did not establish a Florida “business venture”).

As

such, Section 48.193(1)(a)(1) cannot serve as a basis for asserting
personal jurisdiction over Westover.

13

The VPPA – were it properly considered here – would present a
closer call. Nonetheless, the activity relating to that agreement
would still probably not rise to the level necessary to permit the
Court to exercise specific personal jurisdiction over Westover.
The face of the VPPA does not require performance in Florida, and
the documents attached as exhibits to the declaration of Hertz’s
North America Fleet Management team’s Vice President, Darren
Arrington, indicate that Westover did not purchase vehicles from
Florida nor remit payments to Florida; rather, the vehicles came
from Indiana, Colorado, and Minnesota, and the payments went to
Minnesota and Virginia.
(See Doc. #60-4.)
Additionally, the
“fortuitous” fact that the Hertz fleet management agent with whom
Westover coordinated its vehicle purchases is a Florida company is
seemingly insufficient to convert Westover’s New York operations
into a Florida business venture. See Walden v. Fiore, 134 S. Ct.
1115, 1122-23 (2014).
- 17 -

(2)

Section 48.193(1)(a)(7) – Breach of a Contract Requiring
Acts to be Performed in Florida

The

final

jurisdiction

ground

over

on

Westover

which
is

Plaintiffs

Westover’s

base

alleged

personal

failure

to

perform acts that it was, according to Plaintiffs, contractually
required to perform in Florida.
“[I]ndividuals

submit

themselves

to

the

jurisdiction

of

Florida for any cause of action arising from a breach of contract
for

failure

to

perform

acts

performed in this state.”
(Fla.

4th

DCA

2014)

required

by

the

contract

to

be

Olson v. Robbie, 141 So. 3d 636, 639

(quoting

Fla.

Stat.

48.193(1)(a)(7)).

However, for the exercise of jurisdiction over a nonresident or
foreign corporation to be appropriate under subsection (1)(a)(7),
“there

must

exist

a

duty

to

perform

an

act in

Florida; a

contractual duty to tender performance to a Florida resident is
not in itself sufficient to satisfy the statute.”
F.3d at 1218.

Posner, 178

As with the other provisions of the long-arm

statute, “[t]his provision must be strictly construed in order to
guarantee compliance with due process requirements.”

Olson, 141

So. 3d at 640 (quotation omitted).
As far as the Court can tell, the two specific “Florida”
breaches alleged are Westover’s failure to remit licensing fees
before

terminating

the

franchise

- 18 -

relationship

(Count

I)

and

failure

to

provide

Plaintiffs

termination (Count V). 14
(a)

with

timely

notice

of

that

The Court addresses each in turn.

Contractual Obligation to Pay Franchise Fees

Under the License Agreements, Westover was required to send
Plaintiffs
revenues.

certain
The

fees

Second

associated
Amended

with

Complaint

Westover’s
alleges

franchise

that,

when

Defendants terminated the franchise relationship in March 2016,
Westover had outstanding obligations, which it has since refused
to pay.

(Doc. #58, ¶¶ 42, 26.)

Defendants submit that any

putative breach of this obligation does not support personal
jurisdiction under Section 48.193(1)(a)(7) because Westover was
required to – and did – send all payments to Oklahoma, not
Florida,.

Plaintiffs respond that, since Florida was their place

of business in 2016, Florida was the contractual place of payment.
While the License Agreements do not expressly designate a
“place of payment,” there is a “legal presumption that a debt is
to be paid at the creditor’s place of business.”

Laser Elec.

Contractors, Inc. v. C.E.S. Indus., Inc., 573 So. 2d 1081, 1083

14

Plaintiffs’ Response in Opposition to Dismissal also contends
that Westover breached by failing to immediately return
“proprietary corporate materials” to Dollar and Thrifty, but that
allegation is not found in the Second Amended Complaint. Even if
it were, it would not change the Court’s analysis or ultimate
finding that there is no personal jurisdiction over Westover, since
the License Agreements do not state where Westover is to send those
materials.
Hamilton
v.
Alexander
Proudfoot
Co.
World
Headquarters, 576 So. 2d 1339, 1340 (Fla. 4th DCA 1991)
(defendant’s alleged breach of contractual requirement to return
materials to previous employer did not support personal
jurisdiction where contract did not indicate place of return).
- 19 -

(Fla. 4th DCA 1991) (quotation omitted); see also Am. Univ. of the
Caribbean, N.V. v. Caritas Healthcare, Inc., 484 F. App’x 322, 327
(11th

Cir.

2012)

(per

curiam)

(“Under

Florida

law,

a

debtor

presumptively has to pay a creditor at the creditor’s place of
business, absent a contractual provision stating otherwise.”).
But although this presumption can alone “satisfy the language of
Florida’s

long-arm

provision

that

refers

to

contractual

acts

‘required’ to be performed in Florida,” Laser, 573 So. 2d at 1083,
so too can the presumption be rebutted with evidence showing that
payments were in fact required to be sent elsewhere.

See Posner,

178 F.3d at 1219; Caritas Healthcare, 484 F. App’x at 327.
Such is the case here.

Even if the Court initially presumes

that, after Plaintiffs relocated, Westover was expected to send
its payments to Florida, the affidavit of Glenn Gawronski (Doc.
#59-8),

an

individual

with

rebuts this presumption. 15

firsthand

knowledge,

sufficiently

According to Mr. Gawronski, even after

Plaintiffs’ relocation, Westover continued to remit all payments
“to

DTG

Operations,

plaintiffs.
3.)

Inc.

in

Tulsa,

Oklahoma

as

directed

[Westover] did not send checks to Florida.” 16

by

(Id. ¶

Though Plaintiffs deny this contention, they have produced

no evidence supporting such denial.

Accordingly, Plaintiffs have

15

Mr. Gawronski works for a company that “performed accounting and
administrative work for Westover.” (Doc. #59-8, ¶ 2.)
16

This assertion is supported by the four Dollar/Thrifty invoices
attached to Mr. Gawronski’s affidavit (id. pp. 5-8) - one from
2013, one from 2014, and two from 2015 – which instruct Westover
to remit payment to DTG Operations in Tulsa.
- 20 -

failed to carry their “ultimate burden” of establishing that
Westover breached an obligation to pay Plaintiffs in Florida.
Oldfield, 558 F.3d at 1217.
(b)
The

Obligation to Provide Timely Notice of Termination

Second

Amended

Complaint

also

asserts

that

Westover

“failed to provide Dollar and Thrifty the required notice of its
intent to terminate the Dollar and Thrifty License Agreements in
accordance with the time periods required.”

(Doc. #58, ¶ 58.)

Plaintiffs contend that Florida was the termination “place of
performance,” as illustrated by the fact that Westover sent its
communications about the termination to Hertz in Florida.
It

is

true

that

Westover’s

pre-

and

post-termination

communications with Hertz were mailed to Florida.
8,

pp.

2,

5;

58-10.)

However

communications

(Docs. ## 58regarding

the

termination are not notice of the termination.

As to the latter,

the

“[a]ll

License

Agreements

clearly

require

notices,

communications and approvals” to be sent to Tulsa, Oklahoma. 17
(Docs. ## 58-1, p. 30; 58-4, pp. 23-24.)

In compliance therewith,

Westover’s official notice of termination was sent via certified
mail to Tulsa.

(Doc. #58-6.)

Thus, even if Westover did breach

the License Agreements by failing to provide timely notice of
termination, that breach was – so to speak – an Oklahoma one.

See

Olson, 141 So. 3d at 640; Hamilton, 576 So. 2d at 1340.

17

Either party could “designate another address at any time by
delivery of notice to the other,” but there is no evidence that
this in fact occurred.
- 21 -

In short, none of the statutory grounds cited by Plaintiffs
suffice to allow this Court’s exercise personal jurisdiction over
Westover.

Consequently,

the

Court

need

not

address

whether

Westover had the requisite “minimum contacts” with Florida, “so as
to

satisfy

traditional

notions

of fair play and

substantial

justice under the Due Process Clause of the Fourteenth Amendment.”
Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino, 447 F.3d
1357,

1360

Individual

(11th

Cir.

Defendants,

2006)

(quotation

Westover

must

be

omitted).
dismissed

Like
from

the
this

action.
Accordingly, it is hereby
ORDERED:
1.

Defendants’ Motion to Dismiss Plaintiffs’ Second Amended

Complaint for Lack of Personal Jurisdiction (Doc. #59) is GRANTED.
This case is dismissed without prejudice.
2.

Defendants’ Alternative Motion to Transfer Venue (Doc.

#59) is denied.
3.

The Clerk shall terminate all deadlines and close the

case.
DONE and ORDERED at Fort Myers, Florida, this 16th day of
November, 2017.

Copies: Counsel of Record

- 22 -