Hastings v. Inmate Services Corporation
OPINION AND ORDER denying 12 Motion to dismiss or transfer due to improper venue and/or for lack of personal jurisdiction; granting 14 Motion for judicial notice. Signed by Judge John E. Steele on 11/6/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
Case No: 2:17-cv-145-FtM-99CM
INMATE SERVICES CORPORATION,
OPINION AND ORDER
This matter comes before the Court on defendant’s Motion to
Dismiss or Transfer Due to Improper Venue and/or Lack of Personal
attached to the motion (Doc. #12-1).
Plaintiff filed a Response
in Opposition (Doc. #13) and a Request For Judicial Notice (Doc.
#14) 1 of certain screenshots of defendant’s company website.
the reasons set forth below, the motion to dismiss or transfer is
denied and the motion for judicial notice is granted.
governmental entities to transport inmates throughout the United
States for extradition proceedings.
(Doc. #1, ¶¶ 3, 5.)
Plaintiff is now proceeding pro se, but was represented by
counsel when the response was filed.
extradition to Florida on an outstanding warrant which had been
filed in Lee County, Florida, for violation of a No Contact Order.
(Doc. #1, ¶¶ 16-18.)
Plaintiff infers ISC was to transport
plaintiff pursuant to an agreement between ISC and the State of
Florida and/or local Florida law enforcement officials in Lee
(Id. at ¶¶ 7-9.)
Plaintiff’s trip ultimately took 15
days, covered 15,000 miles, and traversed 31 states before arriving
(Id. at ¶ 25.)
Two ISC employees were in charge of plaintiff’s care, custody,
and control while he was being transported.
(Doc. #1, ¶ 24.)
Prior to beginning the transport, ISC refused to allow plaintiff
to acquire his clothing and medications for the cross-country trip,
despite the fact that plaintiff had suffered a heart attack on or
about March 23, 3014, and had spent five days in the hospital.
(Id. at ¶¶ 21-22.)
Plaintiff was handcuffed, shackled, and placed
in ISC’s van for extradition across the country clothed in a paper
(Id. at ¶¶ 23-24.)
Plaintiff remained handcuffed
and shackled for the duration of the trip.
(Id. at ¶ 26.)
Plaintiff is not in possession of any contract or agreement,
but expects one will be revealed during discovery. (Doc. #1, ¶
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The van had a maximum capacity of 13 inmates, but ISC provided
two egg crates within the van for two additional inmates, filling
the van to maximum capacity.
(Doc. #1, ¶¶ 27-29.)
provided minimal food, and was denied medical care and bathroom
breaks, losing 35 pounds during the 15-day trip.
(Id. at ¶¶ 32-
Approximately 50 hours after the ride began, somewhere near
Denver, Colorado, plaintiff started bleeding from his rectum, and
informed the van’s driver.
(Doc. #1, ¶¶ 35-36.)
requested to be taken to a hospital, but ISC employees denied the
request and the group continued on their trip.
(Id. at ¶ 37.)
The van dropped off and picked up inmates throughout the trip,
traveling through the midwest to Chicago, and then to Minnesota
(Doc. #1, ¶ 39.)
During a blizzard in Minnesota,
the van slid off the road into a frozen pond due to careless
(Id. at ¶ 40.)
Highway patrol officers pulled over the
van for speeding in three different states.
(Id. at ¶ 41.)
On or about April 18, 2014, in New York, plaintiff experienced
rapid heartbeat syncope and passed out.
(Doc. #1, ¶ 42.)
employees called their dispatch and were told not to take plaintiff
to the emergency room.
(Id. at ¶ 43.)
Plaintiff was eventually
taken to Sacred Heart Hospital in York, New York, dehydrated and
suffering from bed sores and an abnormal EKG.
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(Id. at ¶ 45.)
After he was stabilized, plaintiff was placed back in the ISC van,
headed for Florida.
Plaintiff arrived in Lee County, Florida on April 20, 2014,
and was placed on the medical floor of the Lee County Jail.
condition and serious medical problems, including malnutrition,
dehydration, mental anguish, and weight loss.
(Doc. #1, ¶¶ 47-
The three-count Complaint (Doc. #1) alleges state law claims
of negligence (Count I) and negligent hiring and retention (Count
II), although it is unclear which state or states’ law plaintiff
asserts apply to these claims.
Plaintiff also states a federal
constitutionally adequate medical care.
The Complaint premises
subject-matter jurisdiction on both diversity of citizenship and
federal question jurisdiction.
(Id. at ¶¶ 12-13.)
ISC moves to dismiss the Complaint for lack of personal
jurisdiction and improper venue. 3
Plaintiff opposes both aspects
of the motion.
Although titled a motion to dismiss or transfer due to
improper venue, defendant fails to make an argument for transfer;
instead stating that it anticipates filing a motion to transfer
pursuant to 28 U.S.C. ¶ 1404 if the motion to dismiss is denied.
(Doc. #12, n.2.)
Therefore, the Court will only address
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A. Personal Jurisdiction
“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. If both Florida law and the
Licciardello v. Lovelady, 544 F.3d 1280, 1283 (11th Cir. 2008)
component of this standard is satisfied in this case.
Florida Long Arm Statute
Plaintiff has not been very clear as to which portions of the
Florida “long arm” statute he relies upon for the assertion of
Plaintiff’s Response contains verbiage
which is only contained in the general jurisdiction provision of
the statute (Fla. Stat. § 48.193(2)), but also states “[i]n the
instant case, the concern is the exercise of specific jurisdiction
over the Defendant.”
(Doc. #13, pp. 5, 8.)
If plaintiff really
intends to assert general jurisdiction, the argument is rejected.
Plaintiff has clearly not satisfied the standard for such allpurpose jurisdiction over a non-Florida corporation.
Celebrity Cruises, Inc., 683 F. App’x 786, 791-92 (11th Cir. 2017)
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The only seemingly relevant portions of the Florida Long Arm
Statute relate to specific jurisdiction and provide:
(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
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.
. . .
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 injury . . . [t]he defendant was engaged
in solicitation or service within this state.”
Fla. Stat. §§ 48.193(1)(a)(1),(2),(6).
Fla. Stat. § 48.193(1)(a)(1): Business or Business
Venture in Florida
“In order to establish that a defendant is carrying on [a]
business for the purposes of the long-arm 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. v.
“[E]ngaging in a single act for profit can amount to a business
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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.
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
maintenance of a license to do business in Florida, the number of
Florida clients served, and the percentage of overall revenue
(internal citations omitted).
The Complaint alleges that ISC does business “throughout the
United States including Fort Myers, Lee County, Florida.”
#1, ¶ 3.)
It also alleges that while ISC was not registered to
do business in the State of Florida, it was in fact doing business
in Florida at all relevant times.
(Id. at ¶ 4.)
it is alleged that ISC was in the business of transporting inmates
and prisoners across the country for extradition proceedings (Id.
at ¶ 5), and transported plaintiff to Fort Myers, Lee County,
Florida pursuant to an extradition request (Id. at ¶ 7.)
ISC has submitted the affidavit of David Cagel, its President,
in which he attests that ISC has never maintained an office in
Florida, does not own real property in Florida, and does not
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governmental entity in Florida for the ongoing, repeated, or
continuous transportation of prisoners.
(Id. at ¶ 3.)
no employees in Florida, and the ISC employees who encountered
plaintiff live in Arkansas, Tennessee, and Mississippi.
On rare occasion, ISC will transport an inmate for a Florida
county, and on those occasions it is done without a formal contract
and the particular county is invoiced for the transport.
In 2014, ISC serviced two counties in Florida.
attests that Florida comprises very little of ISC’s business due
to competitors who operate within Florida.
(Id. at ¶ 4.)
states that records are not kept in an accessible way to calculate
how much of ISC’s business was in Florida, but his “educated guess”
is that in 2014, 2-3% of ISC’s work was in Florida.
Prisoner pick-ups only occur in Florida when ISC is picking up or
dropping off a prisoner in another state.
(Id. at ¶ 5.)
records show that plaintiff was housed at ISC’s Arkansas facility
for almost three days during the middle of his transport (from
April 12-15, 2014).
(Id. at ¶ 6.)
Less than one day of the
transport of plaintiff to Florida was spent in Florida.
This affidavit shifts the burden back to plaintiff to produce
evidence supporting personal jurisdiction.
Mazer, 556 F.3d 1260, 1276 (11th Cir. 2009).
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United Tech. Corp. v.
screenshots of pages from ISC’s website (Docs. ##13-1 - 13-6) 4,
showing that ISC conducts business throughout the United States
and actively solicits customers for the interstate transportation
Plaintiff highlights that ISC’s website states that
it has delivered an alleged murderer and hitman in a high-profile
case involving the murder of a Florida doctor to Florida.
assertions, which establish that ISC’s activities in Florida do
Plaintiff has not met his burden of establishing ISC is within the
reach of this portion of Florida’s long-arm statute.
(b) Fla. Stat. § 48.193(1)(a)(2): Committing a Tortious
Act in Florida
Section 48.193(1)(a)(2) provides that a defendant “submits
himself or herself ... to the jurisdiction of the courts of this
activities] ... [c]ommitting a tortious act within this state.”
Fla. Stat. § 48.193(1)(a)(2).
Physical presence in Florida is not
required to commit a tortious act in Florida.
Corp. v. Marshall, 39 So. 3d 1201, 1207 (Fla. 2010).
Plaintiff requests that the Court take judicial notice of
the screenshots from ISC’s website, to which ISC did not file an
opposition. (Doc. #14.) As the documents are not disputed, the
Court will do so.
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Circuit has recognized that “[f]or personal jurisdiction to attach
under the ‘tortious activity’ provision of the Florida long-arm
statute, the plaintiff must demonstrate that the non-resident
defendant ‘committed a substantial aspect of the alleged tort in
Florida’ by establishing that the activities in Florida ‘w[ere]
essential to the success of the tort.’”
Id. at 857 (quoting
Williams Elec. Co. v. Honeywell, Inc., 854 F.2d 389, 394 (11th
The Eleventh Circuit has held that what is now Fla.
Stat. § 48.193(1)(a)(2) “permits jurisdiction over the nonresident
defendant who commits a tort outside of the state that causes
injury inside the state.”
Licciardello, 544 F.3d at 1283 (citing
Posner v. Essex Ins. Co., 178 F.3d 1209, 1216 (11th Cir. 1999)).
The Complaint alleges that ISC “committed tortious acts that
culminated in damages to the Plaintiff in Lee County, Florida.”
(Doc. #1, ¶ 4.)
It further alleges that plaintiff’s damages
“culminated with his delivery to jail officials on or about April
20, 2014 in Fort Myers, Lee County, Florida.”
(Id. at ¶ 11.)
There is no allegation that plaintiff received proper medical
attention until his delivery to the jail in Lee County.
Complaint alleges that ISC was negligent in the following ways:
Confining plaintiff for hours at a time with an inability to
Failing to allow plaintiff to use the restroom or stretch for
hours at a time;
Confining plaintiff in a van without an opportunity to sleep;
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Refusing to obtain plaintiff’s medications and to provide him
medical care for his preexisting conditions and the episodes
of injury he experienced in the van;
Allowing plaintiff to be subjected to cruel and unusual
punishment during the transportation process;
Failing to obtain medical care for plaintiff in the face of
direct evidence that he was bleeding from his rectum during
the transportation process;
Failing to communicate the seriousness of plaintiff’s medical
conditions to the defendant’s dispatcher and to take
plaintiff to the hospital initially in New York;
Failing to provide plaintiff with adequate nutrition such
that he lost 35 pounds in 15 days during the transportation
Threatening plaintiff during the transportation process and
negligently and carelessly abusing other inmates in front of
(Doc. #1, ¶¶ 52.A-J.)
ISC argues that none of the substantial and essential facts
majority of the tortious activity occurred elsewhere, including
places identified in the Complaint such as California, Colorado,
Minnesota, and New York.
Cagel’s affidavit also attests that
while plaintiff spent at least three days in Arkansas, only one
Plaintiff argues that it is sufficient that the tortious activity
culminated with his delivery to a Florida jail on or about April
20, 2014, where he was treated for serious medical issues.
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at ¶¶ 46-48.)
A reasonable inference from the allegations in the
Complaint is that plaintiff received no improved care while he was
in Florida until being turned over to the Lee County jail.
The Court finds that the Complaint sets forth sufficient
facts, which, if true, establish a basis for long-arm jurisdiction
under Florida Statute § 48.193(1)(a)(2).
The number of days in
defendant committed torts outside the State of Florida which
Complaint is that plaintiff’s alleged mistreatment continued for
the time he was in defendant’s custody in Florida.
activity involves the conditions within the van, and the treatment
of plaintiff throughout the entirety of the trip, which would
include the trip through Florida before dropping plaintiff off.
Plaintiff also claims that he was treated for his injuries in
Licciardello, 544 F.3d at 1283 (citing Posner,
178 F.3d at 1216).
48.193(1)(a)(6), which allows personal jurisdiction for “[c]ausing
injury to persons or property within this state arising out of an
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act or omission by the defendant outside this state, if, at or
about the time of injury . . . [t]he defendant was engaged in
solicitation or service within this state.”
This does not seem
to have any application to the facts alleged in the Complaint.
In the specific jurisdiction context, due process requires
that defendant have adequate notice of the suit, and be subject to
Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980).
directed his activities at the forum”, and injuries resulted from
Madara v. Hall, 916 F.2d 1510, 1516 (11th Cir.
Defendant’s “conduct and connection with the forum must
be of a character that he should reasonably anticipate being haled
into court there.”
Id. (citing Burger King Corp. v. Rudzewicz,
471 U.S. 462, 474 (1985)); World–Wide Volkswagen Corp., 444 U.S.
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’
Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 626 (11th
Cir. 1996) (citations omitted).
See also Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945).
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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 unreasonable to require him to submit to the burdens
of litigation in that forum as well.
Burger King Corp., 471 U.S. at 475–76 (internal citations omitted).
Factors considered to determine if the contacts comport with 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
Licciardello, 544 F.3d at 1288.
jurisdiction over ISC does not offend due process.
ISC’s web site
Furthermore, ISC enters into informal agreements with
extraditions to Florida on occasion.
These include at least one
other recent extradition to Florida, along with the particular
extradition at issue in this case.
Thus, ISC could reasonably
anticipate being haled into Court here.
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1391(b)(2) 5, stating: “Venue is proper in the  Middle District
of Florida in that the Defendant was doing business in the State
of Florida and delivered Plaintiff  in his damaged state to the
jail in Fort Myers, Lee County, Florida.”
(Doc. #1, ¶ 15.)
substantial part of the events or omissions occurred in the Middle
When venue is improper, a court shall “dismiss, or in the
interest of justice, transfer such case to any district or division
in which it could have been brought.”
28 U.S.C. § 1406(a).
disturbing plaintiffs’ initial forum choice.”
SME Racks, Inc. v.
Sistemas Mecanicos Para Electronica, S.A., 382 F.3d 1097, 1100
(11th Cir. 2004).
Here, taking all factual allegations in the
Complaint as true and in the light mot favorable to plaintiff, the
Court finds that dismissal for improper venue fails.
above, the Complaint alleges that defendant’s continued to cause
injury to plaintiff inside of Florida, as the alleged mistreatment
A civil action may be brought in –
(2) a judicial district in which a substantial part of
the events or omissions giving rise to the claim
occurred, or a substantial part of property that is the
subject of the action is situated
28 U.S.C. ¶ 1391(b)(2).
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continued for the time plaintiff was in defendant’s custody in
Plaintiff also claims that he was treated for his
survive a motion to dismiss for improper venue under Section
Accordingly, it is hereby
ORDERED AND ADJUDGED:
Improper Venue and/or Lack of Personal Jurisdiction (Doc. #12) is
Plaintiff’s Request for Judicial Notice (Doc. #14) is
DONE and ORDERED at Fort Myers, Florida, this
Counsel of Record
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