Connor v. Ferris Marketing, Inc. et al

Filing 56

OPINION AND ORDER denying 18 Motion to dismiss for lack of personal jurisdiction. Signed by Judge John E. Steele on 9/30/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHAEL
individual,

CONNOR,

an

Plaintiff,
v.

Case No: 2:16-cv-871-FtM-29MRM

FERRIS MARKETING, INC., a
Delaware
corporation,
PC
GEAR HEAD, LLC, a Florida
limited liability company,
RONALD M. FERRIS, JR., an
individual, and DANIEL A.
SHEA, an individual,
Defendants.

OPINION AND ORDER
This matter comes before the Court on defendant Daniel J.
Shea’s Motion to Dismiss Plaintiff's Complaint for Lack of Personal
Jurisdiction (Doc. #18) filed on January 19, 2017. Plaintiff filed
a Corrected Response in Opposition (Doc. #33) on February 24, 2017.
I.
“Motions to dismiss for lack of personal jurisdiction are
governed by Federal Rule of Civil Procedure 12(b)(2).”

Peruyero

v. Airbus S.A.S., 83 F. Supp. 3d 1283, 1286 (S.D. Fla. 2014).

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).

“A plaintiff seeking to establish 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.

[

]

When

a

defendant

challenges

personal

jurisdiction by submitting affidavit evidence in support of its
position, the burden traditionally shifts back to the plaintiff to
produce

evidence

supporting

jurisdiction.”

Louis

Vuitton

Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1350 (11th Cir. 2013)
(internal

citation

omitted).

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.”

Future Tech. Today, Inc.,

218 F.3d 1247, 1249 (11th Cir. 2000) (citation omitted).
If
recites

defendant’s
the

affidavit

long-arm

statute

is

conclusory

“verbatim”,

and

essentially

“[s]uch

statements,

although presented in the form of factual declarations, are in
substance

legal

Plaintiffs

to

conclusions

respond

with

that

do

evidence

not
of

trigger
their

own

a

duty

for

supporting

jurisdiction.” Posner v. Essex Ins. Co., 178 F.3d 1209, 1215 (11th
Cir. 1999).
conflict,

If the Complaint and defendant’s evidence are in

“the

district

court

must

inferences in favor of the plaintiff.”

construe

all

reasonable

Thomas v. Brown, 504 F.

App’x 845, 847 (11th Cir. 2013) (quoting Madara v. Hall, 916 F.2d
1510, 1514 (11th Cir. 1990)).

2

As previously noted,
The existence of personal jurisdiction is a
question of law. Diamond Crystal Brands, Inc.
v. Food Movers Int'l, Inc., 593 F.3d 1249,
1257 (11th Cir. 2010); Oldfield v. Pueblo De
Bahia Lora, S.A., 558 F.3d 1210, 1217 (11th
Cir. 2009). “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).
Hatton v. Chrysler Canada, Inc., 937 F. Supp. 2d 1356, 1360–61
(M.D. Fla. 2013).
II.
In a light most favorable to plaintiff 1, the Complaint alleges
that defendant Daniel A. Shea (Shea) is a citizen of the State of
Massachusetts who engaged in substantial and not isolated activity
within the State of Florida.

(Doc. #1, ¶¶ 6, 9.)

Shea is the

Chief Financial Officer for Ferris Marketing and PC Gear Head, and
it is alleged that he had frequent travel and communications to
Florida.

(Id., ¶¶ 9, 14, 20(i).)

1

Plaintiff alleges that Shea

Plaintiff is a citizen of South Carolina. Defendant Ferris
Marketing, Inc. (Ferris Marketing) is a Delaware corporation with
its principal place of business in the State of Florida. Defendant
PC Gear Head, LLC is a Florida limited liability company whose
sole members are plaintiff and Ferris Marketing. Defendant Ronald
M. Ferris, Jr., the individual, is a citizen of the State of
Florida. (Doc. #1, ¶¶ 2-6.) This motion addresses the Court’s
jurisdiction over the individual defendant Daniel A. Shea.

3

“(i) operated, conducted, engaged in, or carried on a business or
business venture in Florida; and (ii) committed tortious acts
within Florida for his own personal benefit.”
Plaintiff

further

alleges

that

Shea

has

(Id., ¶ 10.)

established

minimum

contacts with Florida “either through [his] continuous presence in
Florida or through [his] tortious conduct for [his] own pecuniary
gain while in, or directed to, Florida.”

(Id., ¶ 11.)

Shea is a shareholder of Ferris Marketing, and directly or
through a controlling interest in Ferris Marketing or another
entity, owns a controlling interest in: PC Gear Head; Night Owl
SP, LLC, a Florida LLC; Radio Road Toys, LLC, a Florida LLC;
Beechmont,

Inc.

(Beechmont),

a

Massachusetts

corporation;

and

Worldwide Marketing Ltd., a company incorporated in Hong Kong,
China.

(Id., ¶ 15.)

PC Gear Head’s finances were administered by

Beechmont under Shea’s guidance, and as a shareholder of Ferris
Marketing.

Shea controlled an 85% interest in PC Gear Head and

its finances through his controlling interest in Beechmont.

(Id.,

¶ 21.)
The Complaint (Doc. #1) presents one federal claim and eight
state law claims, with only three state-law counts applying to
defendant Daniel A. Shea (Shea):

Count II for breach of fiduciary

duty, Count IV for civil conspiracy, and Count VIII for unjust
enrichment.

As to Count II, plaintiff alleges that Shea was the

Chief Financial Officer for PC Gear Head, and in sole and exclusive

4

control of Ferris Marketing’s finances.

Plaintiff alleges that

Shea facilitated and approved the diversion of profits and loan
proceeds to Ferris Marketing, and took part in combining the
finances of the two companies.

As to Count IV, plaintiff alleges

that Shea conspired with Ferris and Ferris Marketing to coerce
plaintiff

into

consenting

to

the

financial

diverted profits away from PC Gear Head.

transactions

that

As to Count VIII,

plaintiff alleges that Shea conferred a benefit upon himself and
his business interests by diverting the profits without paying
plaintiff a share of the profits.
#15)

reflects

that

Shea

was

The Return of Service (Doc.

personally

served

in

Walpole,

Massachusetts on December 28, 2016.
In his Affidavit in support of the motion (Doc. #18-1), Shea
states

that

he

Massachusetts
Florida.
to

is

the

sole

owner

corporation

with

no

of

Beechmont,

employees

in

the

Inc.,
State

a
of

All accounting and financial reporting services provided

Ferris

Beechmont.

Marketing

and

PC

Gear

Head

were

provided

through

Shea is not an employee of PC Gear Head, but has

visited the State of Florida for “occasional internal office
meetings” concerning the services provided to Ferris Marketing and
PC Gear Head.

Shea states that he has never:

resided in,

maintained, owned, or leased property in the State of Florida;
maintained or possessed a license or permit issued by the State of
Florida; entered into a contract, voted, or paid taxes within the

5

State; and has never established a working office, telephone line,
post office box, or mailing address in the state.
7-10, 12-14, 16-17.)

(Doc. #18-1, ¶¶

Shea also denies committing a tortious act

in Florida or any other state, or ever being involved in a legal
proceeding in the State of Florida, and states that he has not
consented to jurisdiction within the state.
In

response

to

defendant’s

Affidavit,

(Id., ¶¶ 11, 18-19.)
plaintiff

filed

a

Corrected Declaration of Michael Connor in Support of Plaintiffs
Response

in

Opposition

(Doc.

#30,

Exh.

1)

attaching

email

correspondence, and indicating that Shea travelled to Florida 6 to
8 times a year and spent 1 to 2 months a year in Florida.

Since

2010, Shea has traveled to Florida several weeks a year.

Shea

reached out to plaintiff from the Florida office by telephone,
email, and in person directly related to the financial status of
PC Gear Head.

(Id., ¶¶ 8, 11, 12, 13, 17.)
III.

The

applicable

two-step

analysis

to

determine

whether

personal jurisdiction is appropriate is summarized in Horizon
Aggressive Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162,
1166 (11th Cir. 2005).

First, the Court determines whether the

exercise of personal jurisdiction over Shea is appropriate under
Florida’s long-arm statute. 2 Second, and if appropriate, the Court

2

Pursuant to Fed. R. Civ. P. 4(e), if an applicable federal
statute is silent regarding service of process, an individual who

6

considers whether exercising personal jurisdiction comports with
the due process requirements of the Fourteenth Amendment to the
United States Constitution.
States
exercise

Constitution

“If both Florida law and the United

permit,

jurisdiction

the

over

federal

the

district

nonresident

court

may

defendant.”

Licciardello v. Lovelady, 544 F.3d 1280, 1283 (11th Cir. 2008)
(citations omitted).
As a preliminary matter, defendant asserts that plaintiff did
not suffer an injury in the State of Florida because plaintiff is
a citizen of South Carolina, and his ties to the State of Florida
are based on his role with PC Gear Head and defendant’s role with
PC Gear Head.

However, a lack of residence in the forum state

will not necessarily defeat jurisdiction if defendant’s contacts
with the forum state are sufficient.
Inc., 465 U.S. 770, 780 (1984).

Keeton v. Hustler Magazine,

“When a controversy is related to

or “arises out of” a defendant’s contacts with the forum, the Court
has said that a “relationship among the defendant, the forum, and
the

litigation”

jurisdiction.”

is

the

essential

foundation

of

in

personam

Helicopteros Nacionales de Colombia, S.A. v. Hall,

is not a minor or incompetent may be served “in a judicial district
of the United States by” by following state law for service in the
state where service is made, or by delivery of the summons and
complaint to the individual personally. The only federal claim is
against a different defendant, and even if applicable, is otherwise
silent regarding service of process. Cable/Home Commc’n Corp. v.
Network Prods., Inc., 902 F.2d 829, 856 (11th Cir. 1990).

7

466 U.S. 408, 414 (1984) (emphasis added).

See also Walden v.

Fiore, 134 S. Ct. 1115, 1123 (2014) (“Due process requires that a
defendant be haled into court in a forum State based on his own
affiliation with the State, not based on the “random, fortuitous,
or attenuated” contacts he makes by interacting with other persons
affiliated with the State.” (citation omitted)).

As detailed

below, the Court finds that defendant’s relationship to the forum
state is sufficient.
Florida Long-Arm Statute
“Since the extent of the long-arm statute is governed by
Florida law, federal courts are required to construe it as would
the Florida Supreme Court.”
Prods.,

Inc.,

omitted).

902

F.2d

Cable/Home Commc’n Corp. v. Network

829,

856

(11th

Cir.

1990)

(citation

Plaintiff asserts both specific jurisdiction under

subsection (1)(a), and general jurisdiction under subsection (2)
of Fla. Stat. § 48.193.

Specific jurisdiction exists over causes

of action arising from or related to Shea’s actions within the
state, while general jurisdiction is the general power of the Court
to adjudicate any case against Shea, “irrespective of where the
cause of action arose.”

Oldfield v. Pueblo De Bahia Lora, S.A.,

558 F.3d 1210, 1221 n.27 (11th Cir. 2009) (citations omitted).
1. Specific Jurisdiction
“A

forum

may

exercise

specific

jurisdiction

over

a

nonresident defendant if the defendant has ‘purposefully directed’

8

his activities to forum residents and the resulting litigation
derives from alleged injuries that ‘arise out of or relate to’
those activities.”

Cable/Home Commc'n Corp., 902 F.2d at 857

(citations omitted).

The Court considers the quality, nature, and

extent of the activity in the forum, and the foreseeability of
consequences within the forum from outside the forum to determine
if defendant purposefully availed himself of the protection and
privileges of the forum state.

Sea Lift, Inc. v. Refinadora

Costarricense de Petroleo, S.A., 792 F.2d 989, 993 (11th Cir.
1986).
Plaintiff asserts two bases under Florida’s long-arm statute
for the specific jurisdiction of this forum: (1) Shea operates,
conducts, or engages in business in the state or has an office in
the state; and (2) Shea committed a tortious act within the state.
See Fla. Stat. § 48.193(1)(a). 3
A. Business in the State
“In

order

to

establish

that

a

defendant

is

carrying

on

business for the purposes of the long-arm statute, the activities
of the defendant must be considered collectively and show a general

3

Under § 48.193(1), “[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”
enumerated acts. Fla. Stat. § 48.193(1)(a).

9

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. v.
OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir. 2000) (per
curiam)).

Although it is generally true that activities of an

officer on behalf of the company will not support jurisdiction
over the individual, “[a]n exception exists in that personal
participation by a corporate officer in the wrongful activities of
a corporation is sufficient to make the individual, as well as the
corporation, substantially liable for a tort.”

Tommy Bahama Grp.,

Inc. v. Eagle, No. 3:09-CV-641-J-32JRK, 2010 WL 3340538, at *5
(M.D. Fla. Aug. 23, 2010) (citations omitted).

See, e.g., Doe v.

Thompson, 620 So. 2d 1004, 1006 n.1 (Fla. 1993) (“A corporate
officer committing fraud or other intentional misconduct can be
subject to personal jurisdiction.”).
Shea is the Chief Financial Officer for two Florida codefendant businesses:

Ferris Marketing, which has its principal

place of business in the State of Florida; and PC Gear Head, a
Florida limited liability company.

Shea controls and provides

services for the finances of the Florida businesses through his
own company, Beechmont.

Shea does not have employees or an office

in the State, but admits that he has travelled to Florida on
occasion

for

internal

office

meetings

to

services to Ferris Marketing and PC Gear Head.

10

provide

financial

Plaintiff states

that the travel was for long periods and at least 6 times a year.
Plaintiff has also alleged that Shea personally participated in
the decisions that form the basis of the breaches of fiduciary
duty and the conspiracy.

The Court finds that Shea’s travel to

Florida for business related to the Florida co-defendants, as
confirmed by his own Affidavit, and for his own pecuniary benefit,
coupled with plaintiff’s allegations of participation in wrongful
activities, is sufficient under Florida’s long-arm statute.
B. Tortious Act in the State
An out-of-state defendant's 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).

A nonresident

defendant

“through

can

nonresident

commit

a

tortious

defendant's

act

telephonic,

in

Florida

electronic,

or

the

written

communications into Florida,” as long as the cause of action arises
from those communications.
1260 (Fla. 2002).

Wendt v. Horowitz, 822 So. 2d 1252,

“This predicate finding is necessary because of

the connexity requirement contained in section 48.193(1).”

Id.

A nonresident defendant cannot rely upon the corporate shield
doctrine for an intentional tortious act “expressly aimed at the
forum state”.

Allerton v. State Dep’t of Ins., 635 So. 2d 36, 39

(Fla. 1st DCA 1994) (emphasis in original).

See, e.g., Rensin v.

State, Office of Atty. Gen., Dep't of Legal Affairs, 18 So. 3d
572, 575 (Fla. 1st DCA 2009) (citing Rensin, and finding “corporate

11

shield doctrine did not apply to a nonresident investment advisor
who

actively

and

personally

orchestrated

clearly

maintained

communications

various

financial

schemes”).
Shea

for

purposes

of

obtaining the loans, including calling plaintiff while in Florida.
Shea traveled a number of times to Florida as a representative of
Beechmont, and for the financial services to Ferris Marketing and
PC Gear Head, and stayed for extended periods working out of the
Naples office.

Plaintiff alleges that he received no benefit for

his consent, that he was coerced, that PC Gear Head’s loss of
profits deprived him of his share, and that a fiduciary duty was
owed and breached.

The Court finds that the tortious act 4 was

committed in Florida, even if Shea was not present in the State of
Florida at the time plaintiff was coerced into consenting to the
loans.
2. General Jurisdiction
Under

the

general

jurisdictional

provision,

if

defendant

“engaged in substantial and not isolated activity within this

4

“If an individual breaches a fiduciary duty to a company
that has a principal place of business or place of incorporation
in Florida the individual is subject to jurisdiction in Florida
under long-arm statute.” Elandia Int'l, Inc. v. Ah Koy, 690 F.
Supp. 2d 1317, 1329 (S.D. Fla. 2010) (citations omitted). Actions
directed at the forum state by communications is sufficient to
establish long-arm jurisdiction. Machtinger v. Inertial Airline
Servs., Inc., 937 So. 2d 730, 735 (Fla. 3d DCA 2006).

12

state, whether such activity is wholly interstate, intrastate, or
otherwise, is subject to the jurisdiction of the courts of this
state, whether or not the claim arises from that activity.”
Stat. § 48.193(2).

Fla.

See also Louis Vuitton Malletier, S.A. v.

Mosseri, 736 F.3d 1339, 1353 (11th Cir. 2013).

Although no

connexity is required for general jurisdiction, the “substantial
and

not

isolated

activity”

requirement

means

“continuous

systematic general business contact with Florida.”

and

Woods v. Nova

Companies Belize Ltd., 739 So. 2d 617, 620 (Fla. 4th DCA 1999).
“The

requirement

of

continuous

and

systematic

general

business contacts establishes ‘a much higher threshold’ than the
‘minimum contacts’ required to assert specific jurisdiction, ‘for
the facts required to assert this general jurisdiction must be
extensive and pervasive.’” Am. Overseas Marine Corp. v. Patterson,
632 So. 2d 1124, 1127–28 (Fla. 1st DCA 1994) (citations omitted).
“[I]f the defendant’s activities meet the requirements of section
48.193(2), minimum contacts is also satisfied.”

Woods, 739 So. 2d

at 620.
In this case and in a light most favorable to plaintiff, Shea
travelled to Florida a number of times, as related to his role as
a Chief Financial Officer, and Shea stayed for at least a month at
a time.

The travel has been over several years, and at a rate of

several times a year.

The Court finds that Shea’s travel to the

13

forum state has been continuous and systematic for purposes of
establishing general jurisdiction.
Due Process
Due process requires that defendant have adequate notice of
the suit, and be subject to the personal jurisdiction of the forum
state.
(1980).

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291
The “fair warning” requirement is satisfied if defendant

“purposefully directed his activities at the forum”, and injuries
resulted from those activities.”

Madara v. Hall, 916 F.2d 1510,

1516 (11th Cir. 1990).

Defendant’s “conduct and connection with

the

a

forum

must

be

of

character

that

anticipate being haled into court there.”

he

should

reasonably

Madara, 916 F.2d at

1516 (citing Burger King, 471 U.S. at 474; World-Wide Volkswagen
Corp., 444 U.S. at 297).

The Court “must determine whether

sufficient minimum contacts exist between the defendants and the
forum state so as to satisfy ‘traditional notions of fair play and
substantial justice’ under the Due Process Clause of the Fourteenth
Amendment.”

Sculptchair, 94 F.3d at 626 (citations omitted).

also Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
Thus where the defendant “deliberately” has
engaged in significant activities within a
State, [ ], or has created “continuing
obligations” between himself and residents of
the forum, [ ], he manifestly has availed
himself of the privilege of conducting
business there, and because his activities are
shielded by “the benefits and protections” of
the forum's laws it is presumptively not

14

See

unreasonable to require him to submit to the
burdens of litigation in that forum as well.
Burger

King

Corp.

v.

Rudzewicz,

(internal citations omitted).
the

contacts

comport

with

471

U.S.

462,

475–76

(1985)

Factors considered to determine if
fair

play

and

substantial

justice

“include 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 v. Lovelady, 544 F.3d

1280, 1288 (11th Cir. 2008).
The

Court

further

finds

that

the

exercise

of

personal

jurisdiction over Shea does not offend due process. Shea regularly
travels to Florida and the burden to travel would be minimum.
Also,

since

the

heart

of

the

dispute

involves

two

Florida

companies, the forum state has a stake in the litigation.
Accordingly, it is now
ORDERED:
Defendant Shea’s Motion to Dismiss Plaintiff's Complaint for
Lack of Personal Jurisdiction (Doc. #18) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
September, 2017.

Copies:

Counsel of record

15

30th

day of