Pinnacle Insurance & Financial Services, LLC v. Sehnoutka et al

Filing 56

ORDER granting 31 Defendants' Motion to Dismiss Third Amended Complaint. This action is dismissed without prejudice. The Clerk of the Court is directed to close the file. Signed by Judge Marcia Morales Howard on 7/27/2017. (JW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
PINNACLE INSURANCE &
FINANCIAL SERVICES, LLC,
Plaintiff,
vs.

Case No. 3:16-cv-546-J-34JBT

NORMAN R. SEHNOUTKA, JR.,
DEBORAH HERSEY, and
NORMAN R. SEHNOUTKA, JR., CLU,
CHFC, LLC,
Defendants.
_____________________________________/

ORDER
THIS CAUSE is before the Court on Defendants’ Motion to Dismiss Third Amended
Complaint (Doc. No. 31; Motion), filed on October 14, 2016. In the Motion, Defendants
Norman R. Sehnoutka, Jr. (Sehnoutka1), Deborah Hersey (Hersey) (together, the Individual
Defendants), and Norman R. Sehnoutka, Jr., CLU, CHFC, LLC (Sehnoutka LLC)
(collectively, Defendant(s)) request that the Court dismiss this action pursuant to Rule
12(b)(2), Federal Rules of Civil Procedure (Rule(s)), based on a lack of personal jurisdiction,
as well as under Rule 12(b)(6) for failure to state a claim for declaratory relief. See Motion
at 1. In support of the Motion, Defendants attached the affidavits of Sehnoutka and Hersey.
See Motion, Ex. 4: Affidavit of Norman R. Sehnoutka, Jr. (Doc. No. 31-1; Sehnoutka Aff.);
Motion, Ex. 5: Affidavit of Deborah Hersey (Doc. No. 31-1; Hersey Aff.). On October 28,
2016, Plaintiff Pinnacle Insurance & Financial Services, LLC (Pinnacle) filed its Response
1

The Court will refer to Norman R. Sehnoutka, Jr., by his last name and to the limited
liability company that shares his name as “Sehnoutka LLC.”

in Opposition to Defendants’ Motion to Dismiss Plaintiff’s Third Amended Complaint (Doc.
No. 32; Response). Additionally, in support of its position that the Court has personal
jurisdiction over each of the Defendants, Pinnacle filed the Declaration of Jim Ludwick (Doc.
No. 33-1; Ludwick Decl.), the Declaration of Luigi Montolio (Doc. No. 33-2; Montolio Decl.),
and the Declaration of Toni Freeman (Doc. No. 33-3; Freeman Decl.), together with a
number of accompanying exhibits. Accordingly, this matter is ripe for review.
I.

Applicable Law
“A plaintiff seeking the exercise of 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.” See United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir.
2009). Where a defendant “challenges jurisdiction by submitting affidavit evidence in support
of its position, ‘the burden traditionally shifts back to the plaintiff to produce evidence
supporting jurisdiction.’” See id. (quoting Meier ex rel. Meier v. Sun Int’l Hotels, Ltd., 288
F.3d 1264, 1269 (11th Cir. 2002)). In ruling on a motion to dismiss for lack of personal
jurisdiction, a district court has discretion to conduct an evidentiary hearing. See Delong
Equip. Co. v. Wash. Mills Abrasive Co., 840 F.2d 843, 845 (11th Cir. 1988). However, where
the court does not conduct a hearing, “the plaintiff must present only a prima facie showing
of . . . personal jurisdiction.” Id. Here, upon consideration of the Motion and Response, the
Court determines that an evidentiary hearing is not warranted. Thus, the Court considers
whether Pinnacle has made a prima facie showing of facts sufficient to warrant the exercise
of personal jurisdiction over the Defendants.

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A plaintiff makes a prima facie showing by presenting evidence sufficient to withstand
a motion for directed verdict on the issue of personal jurisdiction. Morris v. SSE, Inc., 843
F.2d 489, 492 (11th Cir. 1988). Thus, “[t]he district court must construe the allegations in the
complaint as true, to the extent they are uncontroverted by defendant's affidavits[,]” and
“where the evidence presented by the parties’ affidavits . . . conflicts, the court must construe
all reasonable inferences in favor of the non-movant plaintiff.” Id. (citing Delong Equip. Co.,
840 F.2d at 845); see also United Techs. Corp., 556 F.3d at 1274 (citing Polskie Linie
Oceaniczne v. Seasafe Transp. A/S, 795 F.2d 968, 972 (11th Cir. 1986)) (noting that, if the
defendant rebuts the jurisdictional allegations in the plaintiff’s complaint, “the plaintiff is
required to substantiate [its] jurisdictional allegations [] by affidavits or other competent proof,
and not merely reiterate the factual allegations in the complaint.”).
“A federal district court sitting in diversity may exercise personal jurisdiction to the
extent authorized by the law of the state in which it sits and to the extent allowed under the
Constitution.” Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino, 447 F.3d 1357,
1360 (11th Cir. 2006). Thus, to determine whether personal jurisdiction exists over a
defendant, the Court must engage in a two-part inquiry. See Mut. Serv. Ins. Co. v. Frit
Indus., Inc., 358 F.3d 1312, 1319 (11th Cir. 2004). First, the Court must determine “whether
the exercise of jurisdiction is appropriate under [Florida]’s long-arm statute.” Id. (citing
Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 626 (11th Cir. 1996)). Second, the Court
must consider whether exercising personal jurisdiction over a defendant “would violate the
Due Process Clause of the Fourteenth Amendment to the United States Constitution, which
requires that the defendant have minimum contacts with the forum state and that the

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exercise of jurisdiction over the defendant does not offend ‘traditional notions of fair play and
substantial justice.’” Id. (quoting Sculptchair, Inc., 94 F.3d at 626). “Only if both prongs are
satisfied may a federal or state court exercise personal jurisdiction over a nonresident
defendant.” Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 256 (11th Cir. 1996) (internal
quotations omitted).
Turning to the first prong, Florida’s long arm statute – Florida Statutes section 48.193
– confers two types of jurisdiction. See NW Aircraft Capital Corp. v. Stewart, 842 So. 2d
190, 193-95 (Fla. Dist. Ct. App. 2003). First, section 48.193(1) lists enumerated acts which
will confer specific personal jurisdiction over a defendant for suits arising from those acts.
See Fla. Stat. § 48.193(1). Next, section 48.193(2) “provides that Florida courts may
exercise general personal jurisdiction” if the defendant engages in “substantial and not
isolated activity in Florida[,]” whether or not the claims asserted actually involve the
defendant’s activities in Florida. See Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201,
1203-04 (11th Cir. 2015) (emphasis in original). Here, Pinnacle does not allege that the
events giving rise to this action confer specific personal jurisdiction over any of the
Defendants. See Third Amended Complaint (Doc. No. 28; TAC) ¶ 7. As such, the Court
need only determine whether it can assert general jurisdiction over any Defendant pursuant
to section 48.193(2). Notably, “[t]he reach of [section 48.193(2)] extends to the limits o[f]
personal jurisdiction imposed by the Due Process Clause of the Fourteenth Amendment.”
Carmouche, 789 F.3d at 1204 (quoting Fraser v. Smith, 594 F.3d 842, 846 (11th Cir. 2010)).
Thus, to determine whether the Court has general jurisdiction over any Defendant pursuant
to section 48.193(2), the Court “need only determine whether [its] exercise of jurisdiction

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over [that Defendant] would exceed constitutional bounds.” Id. (quoting Fraser, 594 F.3d at
846); see also Schulman v. Inst. for Shipboard Educ., 624 Fed. Appx. 1002, 1005 (11th Cir.
2015) (per curiam) (adopting and applying the same standard).
II.

Background Facts2
Pinnacle is a Florida limited liability company, see Third Amended Complaint (Doc.

No. 28; TAC) ¶ 1, “comprised of a team of . . . professionals who assist financial advisors
in developing and delivering life insurance and annuity solutions to their clients[,]” see
Response at 1. Sehnoutka LLC is an Illinois limited liability company with its principal place
of business in Geneva, Illinois. TAC ¶ 5. Sehnoutka LLC’s business is the sale of insurance
and annuity products through contacts with financial advisors located primarily in Illinois,
Indiana, Iowa, Michigan, Minnesota, and Wisconsin. See Sehnoutka Aff. ¶¶ 6-7, 10.
Sehnoutka – the sole member and former manager of Sehnoutka LLC – and Hersey – an
independent contractor affiliated with Sehnoutka LLC – are citizens of Illinois and Minnesota,
respectively. See TAC ¶¶ 3-4; Sehnoutka Aff. ¶ 3; Hersey Aff. ¶ 4.
On or about March 15, 2012, Pinnacle and Sehnoutka – acting on behalf of
Sehnoutka LLC – executed a written Letter of Understanding (LOU) for the purpose of
“establish[ing] a national selling agreement” for insurance policies whereby Sehnoutka LLC
2

For purposes of ruling on this Motion, in which Defendants seek dismissal of this action
on the basis of a lack of personal jurisdiction, the Court “‘must accept the facts alleged in the complaint
as true, to the extent they are uncontroverted’” by Defendants’ affidavits. See Snow v. DirecTV, Inc., 450
F.3d 1314, 1317 (11th Cir. 2006) (quoting Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990)).
Because Defendants challenged Pinnacle’s jurisdictional allegations via affidavits, Pinnacle was required
to substantiate its allegations through affidavits or other evidence of its own. See Future Tech. Today,
Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir. 2000) (per curiam). In doing so, Pinnacle
had to “do more than merely reiterate the factual allegations in its complaint.” Id. (citation and internal
quotations omitted). Where Pinnacle met this burden, and where Pinnacle and Defendants’ affidavits
are in true conflict, the Court “must construe all reasonable inferences in [Pinnacle’s] favor.” See Snow,
450 F.3d at 1317.
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would utilize Pinnacle’s “strategic relationships” to find potential clients and make sales. See
TAC ¶ 10; Motion, Ex. 1-A.3 Pursuant to the LOU, which the parties subsequently amended
on or around June 5, 2014, Pinnacle was to “provide [Sehnoutka LLC] prospective names
from these [strategic] relationships with the intent that [Sehnoutka LLC] would develop
additional sources of revenue from such relationships[,]” at which point Sehnoutka LLC
would be entitled to a commission in an amount that varied based on the circumstances of
the sale. See TAC ¶ 11; Motion, Ex. 1-A, 1-B. In other words, Sehnoutka LLC’s role under
the agreement was to sell insurance policies “created and developed by insurance carriers
with whom Pinnacle ha[d] master agreements” using leads generated by Pinnacle. See
Sehnoutka Aff. ¶ 8. The LOU also contained provisions regarding its termination and
enforcement, as well as a non-solicitation covenant; and the rights and obligations of the
parties pursuant to these provisions are at issue in this action. See generally TAC; Motion;
Response. On December 17, 2015, Pinnacle terminated the LOU and notified Defendants
that they were to “discontinue representing [Pinnacle] with every Pinnacle relationship.” See
TAC ¶ 15; Motion, Ex. 1-C.
On September 30, 2016, Pinnacle filed the TAC, in which it asserts one claim for
breach of contract against Sehnoutka LLC (Count I) and another for declaratory relief
against both Sehnoutka LLC and the Individual Defendants (Count II). See generally TAC.
Specifically, with regard to Count I, Pinnacle alleges that Sehnoutka LLC, through its

3

The LOU expressly stated that its purpose was to establish a “national selling
agreement” between Pinnacle and Sehnoutka LLC. See Motion, Ex. 1-A. However, for reasons unclear
to the Court, Pinnacle used Sehnoutka’s individual name as the defined term for Sehnoutka LLC, and
did not provide a line on the signature page for Sehnoutka to indicate that he was signing the agreement
in his representative capacity on behalf of Sehnoutka LLC. See id.
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“authorized agents” – the Individual Defendants, breached the non-solicitation provision of
the LOU by “contact[ing], ma[king] sales to, and accept[ing] business from producers or field
representatives deemed by Pinnacle to be proprietary[,]” and by “solicit[ing] business with
national accounts sourced by Pinnacle that were not submitted through Pinnacle.” Id. ¶ 18.
Pinnacle further alleges that Sehnoutka LLC and the Individual Defendants “falsely
represented to customers of Pinnacle, including Raymond James[4] [], that Pinnacle is no
longer doing business with Raymond James and other customers . . . in furtherance of their
attempt to solicit business in breach of the [LOU’s] restrictive covenants.” Id. ¶ 19. As for
the declaratory judgment claim in Count II, Pinnacle alleges that it is in doubt about its rights
and obligations under the LOU based on Defendants’ demands for “alleged past due
amounts as well as demands for payments in the future . . .”. Id. ¶¶ 27, 31.
With regard to jurisdiction, Pinnacle alleges that the Court has general personal
jurisdiction over all Defendants pursuant to section 48.193(2), Florida Statutes, which states
that “[a] defendant who is engaged in substantial and not isolated activity within this 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.” See Fla. Stat.
§ 48.193(2); TAC ¶ 7. In support of this contention, Pinnacle alleges that: (1) Defendants
sell and solicit for sale life insurance products “that are processed for financial advisors
4

Raymond James is a financial services firm with its corporate headquarters in Tampa,
Florida. See Ludwick Decl. ¶ 40. Defendants’ business relationship with Pinnacle provided Defendants
“access to sell life insurance products to [the clients of] financial advisors who work for Raymond James
and other financial institutions.” Id. ¶ 39. According to Jim Ludwick (Ludwick) – the President and CEO
of Pinnacle – this is significant because Pinnacle is one of only eight firms nationwide with permission
to sell insurance through Raymond James’ advisors. Id. ¶ 11. Ludwick further asserts that a “significant
amount” of Defendants’ sales can be attributed to clients of Raymond James, and that all processing and
approvals for new insurance plans issued through Raymond James occurred at the Tampa, Florida
headquarters of Raymond James. See id. ¶¶ 39-41.
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whose broker/dealers have a home office in Florida”; (2) the Individual Defendants traveled
to Pinnacle’s office in Jacksonville, Florida, for business meetings no less than eight times
between March of 2012 and September of 2015; and (3) Pinnacle paid commissions directly
to Hersey, individually, for a period of time. See TAC ¶¶ 7-9.
A.

Sehnoutka LLC5

Sehnoutka maintains that Sehnoutka LLC is an Illinois company with its principal
place of business in Illinois that is “engaged in the business of selling insurance, primarily
life insurance and annuity products” to the clients of financial advisors of broker/dealers
located in various Midwestern states. Sehnoutka Aff. ¶¶ 3, 6. Sehnoutka LLC also works
with independent contractors who sell insurance products using their own relationships with
financial advisors; however, according to Sehnoutka, “neither Sehnoutka LLC, nor the
independent contractors with whom it does business, solicit to sell or sell insurance
products” to Florida residents. See id. ¶¶ 7-8. Regarding Sehnoutka LLC’s business
operations under the terms of the LOU, Sehnoutka maintains that Sehnoutka LLC did not
sell life insurance plans developed by Pinnacle, and that Pinnacle’s limited involvement in
the sales process was to “respond to requests for life insurance and annuity quotes from
Sehnoutka LLC” based on information provided to Sehnoutka LLC by the clients of affiliated
financial advisors. Id. ¶ 21. Sehnoutka further attests that: (1) Sehnoutka LLC conducted
the majority of the work for its clients from its home office in Illinois; (2) Sehnoutka LLC
gained significant business from only two ‘leads’ provided by Pinnacle, one in Wisconsin and

5

The Court will first address the parties’ jurisdictional contentions with respect to
Sehnoutka LLC – the corporate defendant – and then turn to any allegations separately directed at the
Individual Defendants.
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another in Illinois; (3) Sehnoutka LLC did not market any of Pinnacle’s services to financial
advisors or their clients, and instead marketed life insurance products designed by thirdparty insurance carriers; (4) Sehnoutka LLC did not use any marketing materials provided
by Pinnacle; (5) Sehnoutka LLC never mentioned Pinnacle or its services during the sales
process; and (6) Sehnoutka LLC’s affiliated financial advisors – including those employed
by broker/dealer Raymond James – and their clients were all located in Midwestern states
and not in Florida. See id. ¶¶ 22-27, 33.
According to Sehnoutka, Pinnacle played only a minor role in the process of selling
insurance policies. See id. ¶ 28. As part of this process, Pinnacle employees would
occasionally assist with preparing quotes and “illustrations”6 using data and other information
provided by Sehnoutka LLC. Id. ¶ 28(a). Later, once the client and the client’s financial
advisor completed an application for coverage, Sehnoutka LLC would send the application
to a case manager at Pinnacle who would, in turn, submit the application to the third-party
insurance carrier and assist in determining what – if anything – was required to fully
complete the application. See id. ¶¶ 28(c)-(e). Then, once the insurance carrier issued the
policy, the carrier would deliver the policy to Pinnacle for return to Sehnoutka LLC, the client,
and his or her financial advisor for execution, at which point the executed policy would be
sent back to both Pinnacle and the insurance carrier. See id. ¶ 28(f). The insurance carrier
would then pay out a commission to Pinnacle, a portion of which would be direct-deposited
into Sehnoutka LLC’s operating account or, when appropriate, Hersey’s individual business

6

“Illustrations” can be defined in this context as “documents that accompany [insurance]
applications [which] are used to illustrate all of the variables in an insurance contract to ensure the client
understands what he or she is purchasing.” Ludwick Decl. ¶ 31.
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account. See id. ¶ 28(g). As a result of Pinnacle’s purportedly limited involvement in this
process, Sehnoutka maintains that Pinnacle and Sehnoutka LLC (including the Individual
Defendants), “rarely, if ever, interacted via telephone or e-mail in any extensive [] manner.”
Id. ¶ 29. Lastly, Sehnoutka avers that Pinnacle never provided Sehnoutka LLC with any
proprietary or trade secret information,7 managerial training or assistance, supervision of
daily operations, or general problem-solving assistance. See id. ¶¶ 34, 36.
In response, Ludwick has presented a declaration in which he contends that
“Pinnacle had significant oversight over [Defendants] in their roles as contractors of
Pinnacle[,]” specifically in regard to ensuring compliance with Raymond James’ rules and
requirements for the marketing and sale of insurance products through Raymond James.
See Ludwick Decl. ¶¶ 12-13; 23. For example, according to Ludwick, the Individual
Defendants were provided Pinnacle business cards and were required to represent
themselves as representatives of Pinnacle “in all written, electronic, and verbal
communications[,]” particularly when interacting with Raymond James financial advisors.
Id. ¶¶ 14-16; see also Montolio Decl. ¶¶ 3-5. Ludwick further asserts that Pinnacle was
involved in the “bulk of the work” in processing applications for insurance submitted by
Sehnoutka LLC as well as in designing, structuring, and ultimately selecting the insurance
policy or polices to be offered to clients for purchase.8 See Ludwick Decl. ¶¶ 19-21; see also
7

Specifically, Sehnoutka states that “[a]ny customer relationships or contacts that
Pinnacle is claiming to be ‘proprietary’ are publicly disclosed on the individual broker[/]dealer websites
[and] Pinnacle’s alleged ‘trade secret’ insurance design process is publicly available on its own website.”
Id. ¶ 35.
8

Pinnacle views its involvement with processing insurance applications as more
substantial than what is described by Defendants. According to Pinnacle, upon receipt of an insurance
application, Pinnacle would review the application for “completion and compliance” with any necessary
(continued...)
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Montolio Decl. ¶ 6. To this end, Ludwick avers that Pinnacle provided Sehnoutka LLC with
“necessary paperwork, marketing materials, forms, and other documents” for clients and
financial advisors to use in completing the insurance applications that would then be
returned to Pinnacle for processing. See Ludwick Decl. ¶ 24. Ludwick maintains that this
case management and insurance design process generally involved at least weekly
communications with Sehnoutka LLC, especially for the purpose of “problem solving” issues
with the applications. See id. ¶¶ 22, 24, 35-37.
In addition to providing oversight, which necessitated frequent communication
between the parties – including at least two scheduled weekly calls and “almost daily e-mail
exchanges” – Ludwick states that Pinnacle provided Sehnoutka LLC with a number of
services, including, but not limited to: (1) lead generation and appointment scheduling; (2)
follow-up assistance on sales leads; and (3) the creation of marketing materials to use in
making sales. See id. ¶¶ 43, 45-46; see also Montolio Decl. ¶¶ 8, 9, 11; Freeman Decl. ¶
14. Ludwick also maintains that Pinnacle provided “proprietary trade secret information” to
Defendants in the form of “customer relationships and customer contacts, as well as
information regarding Pinnacle’s insurance design process.” Ludwick Decl. ¶ 47.

8

(...continued)
requirements, a process which often required substantial effort and further communication with
Sehnoutka LLC. Freeman Decl. ¶¶ 5-6. Once complete, Pinnacle would forward the application to the
broker/dealer’s compliance department and then to the insurance carrier for approval. Id. ¶¶ 7-8. After
the carrier sent the issued policy to Pinnacle for review, Pinnacle would transmit the policy to Sehnoutka
LLC and the other necessary parties for execution. Id. ¶¶ 9-11. The executed policy would then be
returned to Pinnacle so that Pinnacle could secure the commission due from the insurance carrier. See
id. ¶¶ 11-12. On the whole, the Court notes that this process appears substantially similar – albeit
explained in greater detail – to that which Defendants described.
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B.

The Individual Defendants

Sehnoutka resides in Illinois and has never been a Florida resident. Sehnoutka Aff.
¶ 2. He is not licensed to sell – and does not sell – insurance or other products in Florida
or to Florida residents, nor does he operate, conduct, engage in, or carry on any business
in Florida. Id. ¶ 9. Indeed, Sehnoutka avers that all of his business activities are conducted
in the states of Illinois, Indiana, Iowa, Michigan, Minnesota, and Wisconsin. Id. ¶ 10. With
respect to the LOU, Sehnoutka asserts that he executed the agreement and its addendum
in his capacity as manager of Sehnoutka LLC and not individually. See id. ¶¶ 13-14, 20.
Similarly, regarding his travels to Florida, Sehnoutka states that, in March of 2012, he first
traveled to Pinnacle’s Florida office – at Pinnacle’s request – solely in his capacity as
manager of Sehnoutka LLC for the purpose of discussing the terms of entering into a
business relationship whereby Sehnoutka LLC would sell insurance products marketed and
distributed by Pinnacle. Id. ¶¶ 11-12. Subsequently, in January of 2013, 2014, and 2015,
Sehnoutka traveled to Florida in furtherance of the business of Sehnoutka LLC to attend
Pinnacle’s annual kickoff meetings, and in June of 2012, July of 2013, July of 2014, and
September of 2015, Sehnoutka traveled to Florida to also attend Pinnacle’s annual sales
meetings. See id. ¶¶ 18-19.
Hersey resides in Minnesota and also has never been a resident of the state of
Florida. Hersey Aff. ¶ 2. Hersey states that she is “self-employed as a sole proprietor
engaged in the sale of insurance products to clients in Minnesota, Wisconsin, and Iowa” and
that she provided services to Sehnoutka LLC as an independent contractor, meaning she
was never “a member, officer, or employee of Sehnoutka LLC.” See id. ¶¶ 3-4; see also

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Sehnoutka Aff. ¶¶ 15-16. In addition, Hersey maintains that she is not licensed to sell – and
does not sell – insurance or other products in Florida or to Florida residents, nor does she
conduct, engage in, or carry on any business activity in Florida. Hersey Aff. ¶ 5. With
respect to the LOU, Hersey avers that “she is not a party to the Agreement and at no time
agreed to be bound by its terms.” Id. ¶ 8; see also Sehnoutka Aff. ¶¶ 20. Regarding her
travels to Florida, Hersey states that she initially accompanied Sehnoutka to Pinnacle’s
Jacksonville, Florida, office in March of 2012 at his request, and that her subsequent visits
for additional meetings were “in furtherance of the business of Sehnoutka LLC, and never
in [her] individual capacity.” Hersey Aff. ¶ 6; see also Sehnoutka Aff. ¶ 18. Lastly,
addressing the issue of her commissions, Hersey notes that – beginning in or about June
of 2013 – Sehnoutka LLC requested that Pinnacle begin paying Hersey directly to reduce
its own administrative burden, but also avers that these commissions were nothing more
than what she had earned “as an independent contractor providing insurance sales services
to Sehnoutka LLC.” Hersey Aff. ¶ 7; see also Sehnoutka Aff. ¶ 17. In other words, Hersey
maintains that neither she nor Sehnoutka ever charged individual services to Pinnacle, as
all services were provided on behalf of Sehnoutka LLC. See Hersey Aff. ¶ 7.
In support of Pinnacle’s contention that general jurisdiction exists with respect to the
Individual Defendants, Ludwick primarily asserts that – after the termination of the LOU –
Pinnacle received three demand letters from counsel for the Individual Defendants seeking
unpaid compensation allegedly owed under the LOU. See Ludwick Decl. ¶¶ 52-54, Ex. G
(Demand Letters). Notably, according to Ludwick, these Demand Letters failed to mention
Sehnoutka LLC and instead referenced “personal claims for commissions[,]” thereby

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contradicting the Individual Defendants’ assertions that they only provided services on behalf
of Sehnoutka LLC pursuant to the LOU. See id. ¶¶ 55-56. With regard to Hersey, Ludwick
adds that she acted as an agent of Sehnoutka and/or Sehnoutka LLC in the performance
of the LOU. Id. ¶ 7. In support of this contention, Ludwick notes that Hersey regularly
utilized Pinnacle to provide illustrations. Id. ¶ 30.
Having outlined the parties’ relevant jurisdictional allegations, as well as the evidence
offered in support thereof, the Court now considers whether this evidence is sufficient for the
Court to exercise general personal jurisdiction over Defendants.
III.

Discussion
In the present action, Pinnacle contends that this Court possesses general personal

jurisdiction over Defendants because Defendants engaged in “continuous and systematic
general business contact in Florida” as required by Florida’s long-arm statute, see Response
at 13 (citing Autonation, Inc. v. Whitlock, 276 F. Supp. 2d 1258, 1262 (S.D. Fla. 2003)), and
as such, “the due process requirements of sufficient minimum contacts are also met[,]” see
id. at 14 (citing Mold-Ex, Inc. v. Mich. Technical Representatives, Inc., No. 3:04-CV-307MCRMD, 2005 WL 2416824, at *4 (N.D. Fla. Sept. 20, 2005)).9 Specifically, Pinnacle
argues that general jurisdiction is properly exercised in this action due to: (1) the Individual
Defendants attending biannual meetings in Florida; (2) Pinnacle providing Defendants with
proprietary information and other trade secrets; (3) Pinnacle providing Defendants with
“marketing materials, forms, and other necessary paperwork”; (4) Pinnacle providing
9

“Although an unpublished opinion is not binding . . ., it is persuasive authority.” United
States v. Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000) (per curiam); see generally Fed. R. App. P. 32.1;
11th Cir. R. 36-2 (“Unpublished opinions are not considered binding precedent, but they may be cited
as persuasive authority.”).
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Defendants with assistance and support in performing sales duties; and (5) Defendants
regularly communicating with Pinnacle’s Florida office on case management and insurance
design work. See id. at 13-14. Of particular import to Pinnacle is the fact that its relationship
with Defendants continued for nearly four years, as a defendant’s activities “collectively, over
a period of time” can be used to establish general jurisdiction. Id. at 13 (citing Whitlock, 276
F. Supp. 2d 1263).
Conversely, Defendants argue that an exercise of general jurisdiction is improper in
this action because a defendant’s contacts with the applicable forum must “be such that the
defendant should reasonably anticipate being hauled [sic] into court there[,]” Motion at 17
(quoting Wallack v. Worldwide Mach. Sales, Inc., 278 F. Supp. 2d 1358, 1368 (M.D. Fla.
2003)), and also because “[a]n individual’s contract alone with an out of state defendant
does not automatically establish minimum contacts with the individual’s home forum[,]” id.
at 18 (quoting Wallack, 278 F. Supp. 2d at 1369). In particular, Defendants attest that: (1)
the Individual Defendants’ only contact with Florida was via their handful of visits to
Pinnacle’s office in Jacksonville, Florida; (2) the Individual Defendants are not parties to the
LOU individually, nor are they Florida residents; (3) none of the Defendants “operated,
conducted, engaged in, or carried on any business” in Florida; and (4) all of Sehnoutka
LLC’s business activities were performed in Midwestern states, meaning Defendants “did
not sell or solicit the sale of insurance” to any Florida residents. See id. at 16, 18.
Notably, neither party references either Goodyear Dunlop Tires Operations, S.A. v.
Brown, 564 U.S. 915 (2011), or Daimler AG v. Bauman, ___ U.S. ____, 134 S. Ct. 746
(2014), the United States Supreme Court’s decisions on general personal jurisdiction which

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inform the Court’s determination of the jurisdictional challenges presented here. “Relying
in large part on its decision in [Goodyear], the Daimler Court rejected as ‘unacceptably
grasping’ the notion that a corporation is subject to general jurisdiction in every state in
which it ‘engages in a substantial, continuous, and systematic course of business.’” Erwin
v. Ford Motor Co., No. 8:16-CV-01322-T-24AEP, 2016 WL 7655398, at *9 (M.D. Fla. Aug.
31, 2016) (quoting Daimler, 134 S. Ct. at 760). In doing so, the Court made clear that “only
a limited set of affiliations with a forum will render a defendant amenable to all-purpose
jurisdiction there.” Daimler, 134 S. Ct. at 760. With respect to an individual, “the paradigm
forum for the exercise of general jurisdiction is the individual’s domicile.” Id. (quoting
Goodyear, 564 U.S. at 925, 131 S. Ct. at 2853-54). Alternatively, for a corporation, “it is an
equivalent place, one in which the corporation is fairly regarded as at home.” Id. (citation
omitted). “Since Daimler, the Eleventh Circuit has clarified that general jurisdiction is only
appropriate over nonresident corporate defendants if ‘the corporation’s activities in the forum
closely approximate the activities that ordinarily characterize a corporation’s place of
incorporation or principal place of business.’” Erwin, 2016 WL 7655398, at *10 (quoting
Carmouche, 789 F.3d at 1205). In Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201
(11th Cir. 2015), the Eleventh Circuit – applying Daimler – explained that:
[a] court may assert general jurisdiction over foreign (sister-state or
foreign-country) corporations, without offending due process when their
affiliations with the State are so ‘continuous and systematic’ as to render them
essentially at home in the forum State . . . And a corporation's operations in a
forum other than its formal place of incorporation or principal place of business
will be so substantial and of such a nature as to render the corporation at
home in that State only in “exceptional” cases.

-16-

Id. at 1204 (internal citations and quotations omitted); see also Wolf v. Celebrity Cruises,
Inc., ___ Fed. Appx. ____, 2017 WL 1149092, at *3 (11th Cir. Mar. 28, 2017) (per curiam)
(citing Carmouche and noting that the court held in that case that “a [defendant’s]
connections with Florida – including a Florida bank account, two Florida addresses [],
purchasing insurance from Florida companies, filing a financing statement with the Florida
Secretary of State, joining a non-profit trade organization based in Florida, and consenting
to jurisdiction in [Florida] – were not so ‘continuous and systematic’ as to render it essentially
at home there.”). Notably, the Supreme Court has described Perkins v. Benguet Consol.
Mining Co., 342 U.S. 437 (1952), where a corporation relocated from the Philippines to Ohio
to establish a “center of . . . wartime activities[,]” as an example of such an “exceptional
case” which would permit the exercise of general jurisdiction under the post-Daimler
paradigm. See BNSF Ry. Co. v. Tyrrell, 581 U.S. ____, 137 S. Ct. 1549, 1558 (May 30,
2017) (emphasizing the extraordinary circumstances necessary to find a corporation at
home in a state other than one in which it is incorporated or has a principal place of
business).
A.

Sehnoutka LLC

Here, the parties agree that Sehnoutka LLC is not incorporated in Florida and that it
does not maintain its principal place of business in Florida. See TAC ¶ 5; see also Motion
at 2. As such, consistent with Daimler, the Court can exercise general jurisdiction over
Sehnoutka LLC only if Pinnacle demonstrates that, when viewed in light of all of its activities,
its contacts with Florida are so substantial as to qualify as an “exceptional case” in which it
is effectively at home in Florida. Although Pinnacle alleges that Sehnoutka LLC has many

-17-

contacts with Florida, it has not shown that these contacts make Sehnoutka LLC
“comparable to a domestic enterprise in [Florida].” Erwin, 2016 WL 7655398, at *11 (citing
Daimler, 134 S. Ct. at 758 n. 11). Accordingly, upon review of the Motion, Response, and
accompanying documents, the Court determines for the reasons set forth below that this is
not one of those “exceptional cases” where Sehnoutka LLC’s operations in Florida are so
substantial and of such a nature as to render the corporation effectively “at home” here.
Carmouche, 789 F.3d at 1204.
In contending that this Court has jurisdiction, Pinnacle mistakenly places great weight
on the role it played in Sehnoutka LLC’s case management and insurance sales processes
under the terms of the LOU, as opposed to Sehnoutka’s contacts with Florida. See
generally Response.

Although the parties were operating pursuant to a contractual

agreement, even before Daimler, courts recognized that “[a] [party’s] contract alone with an
out of state defendant does not automatically establish minimum contacts with the [party’s]
home forum.” Wallack, 278 F. Supp. 2d at 1369 (citing Burger King Corp. v. Rudzewicz, 471
U.S. 462, 479 (1985)). This was so, at least in part, because a contract is considered an
“intermediate step” linking prior negotiations with future business transactions, and as such,
the courts focused on the parties’ actual course of dealing under the contract in determining
whether sufficient minimum contacts existed to justify a finding of personal jurisdiction. See
id. (citation omitted). Additionally, “[a] plaintiff’s unilateral contacts with the forum state
cannot be imputed to the non-resident defendant in order to satisfy the requirement of
contact with the forum state.” Id. at 1370 (citing Hanson v. Denckla, 357 U.S. 235, 253
(1958)).

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In a pre-Daimler decision, the court examined the parties’ course of conduct and
found it to be insufficient to confer general jurisdiction. See Rexam Airspray, Inc. v.
Arminak, 471 F. Supp. 2d 1292 (S.D. Fla. 2007). In Rexam, a plaintiff and a defendant,
individually, entered into an agreement10 whereby the defendant became an “independent
sales representative” for the plaintiff in a territory that included a number of Western states.
Id. at 1294, 1302. After approximately six years, the relationship between the parties
deteriorated, and the plaintiff filed suit for breach of contract in its home state of Florida. See
id. at 1293-94. The defendants moved to dismiss the case based on a lack of personal
jurisdiction. Id. at 1293. In resolving the dispute, the court first noted that neither the
individual defendant nor her corporation had established a presence in Florida or was
otherwise “qualified, registered, or licensed to do business” in Florida. See id. at 1296. The
court also observed that the individual defendant made “around eight trips to Florida” over
approximately six years for sales meetings, and that both the individual defendant and her
corporation were provided with the plaintiff’s letterhead and brochures for marketing
purposes. See id. at 1296-97. Nevertheless, on balance, the court concluded that it lacked
general jurisdiction over both the corporate and individual defendant in part because the
plaintiff’s contact with the forum could not be imputed to the defendants inasmuch as the
defendants functioned as “non-exclusive independent sales representative[s].” See id. at
1302. In other words, the court determined that the nature of the defendants’ long-term

10

The agreement was subsequently amended to substitute the individual defendant’s
corporation, also a named defendant, as the contracting party. Among other things, the agreement
contained a confidentiality provision, a non-compete covenant, and a forum selection clause indicating
that “[a]ny controversy, claim or dispute” between the parties would be heard in Florida. See id. at 129495.
-19-

contractual relationship with the Florida-based plaintiff, which merely required defendants
to find buyers for the plaintiff in markets other than Florida and service those relationships
from out of state, resulted in contacts that were “far too attenuated’ to support a finding of
continuous and systematic contacts with the State of Florida [].” See id. at 1303. Thus,
even in a pre-Daimler case employing a less rigorous standard for exercising general
jurisdiction, the defendants’ motion to dismiss was granted under circumstances similar to
those present here. Id. at 1303-04.
As Sehnoutka LLC also effectively functioned as an independent contractor of
Pinnacle, a comparison with Rexam illustrates that the facts alleged here are insufficient to
find that Sehnoutka LLC established “continuous and systematic” business contacts in
Florida, let alone that it is essentially “at home” here. Indeed, the similarities between the
nature of the parties’ contractual relationship here and in Rexam support the conclusion that
Sehnoutka LLC’s contacts with Florida are also far too attenuated to establish general
jurisdiction.
Notably, many of Sehnoutka LLC’s alleged contacts with Florida are, in reality, those
of Pinnacle. In particular, Pinnacle asserts that it exercised “significant oversight” over all
Defendants in their role as contractors by: (1) ensuring compliance with third-party rules and
requirements governing the marketing and sale of insurance products, see Ludwick Decl.
¶¶ 12-13; 23; and (2) processing applications for insurance coverage and ultimately
designing and structuring insurance policies to be offered for purchase, see id. ¶¶ 19-21;
Montolio Decl. ¶ 6. Pinnacle further maintains that it assisted Sehnoutka LLC with lead
generation, appointment scheduling, and follow-up assistance on sales leads, among other

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things, and that all of the aforementioned actions occurred in Florida. See Ludwick Decl.
¶¶ 43, 45-46; Montolio Decl. ¶¶ 8, 9, 11; Freeman Decl. ¶ 14. Pinnacle also notes that all
Raymond James financial advisors are governed by Raymond James’ corporate
headquarters in Tampa, Florida, regardless of where the advisors are physically located.
Ludwick Decl. ¶ 40. But, neither Pinnacle’s business activities in Florida – nor those of
broker/dealer Raymond James – can be imputed to Sehnoutka LLC. Wallack, 278 F. Supp.
2d at 1370.
Pinnacle additionally suggests that a finding of personal jurisdiction is warranted as
a result of Pinnacle providing Defendants with proprietary information and trade secrets –
including customer contacts and information regarding its insurance design process – as
well as non-proprietary marketing materials and other necessary paperwork. See Response
at 10-11, 13-14. In response to this assertion, Defendants maintain that they did not use
any of Pinnacle’s marketing materials, did not market Pinnacle’s services, and did not
receive any confidential or proprietary information from Pinnacle at any time.

See

Sehnoutka Aff. ¶¶ 24, 33 (“Pinnacle’s marketing materials would have been irrelevant to
clients because it was not Pinnacle’s services that were being sold or marketed, but rather
the services of the various insurance carriers.”), 34. In support of its position, Pinnacle cites
to a number of pre-Daimler cases addressing the effect of parties sharing information with
one another on determining the existence of general personal jurisdiction. See, e.g.,
AutoNation v. Hankins, No. 03-14544 CACE (05), 2003 WL 22852206 (Fla. Cir. Ct. 2003)
(discussing the impact of sharing “proprietary and confidential business information”
including “corporate policies” and “marketing strategies” on the jurisdictional analysis);

-21-

Nordmark Presentations, Inc. v. Harman, 557 So. 2d 649 (Fla. Dist. Ct. App. 1990)
(discussing the impact of sharing proprietary information and trade secrets, among other
things, on the jurisdictional analysis). However, given that these cases were all decided
without the benefit of the Supreme Court’s reasoning in Daimler, the Court questions their
continuing applicability in determining whether Defendants’ contacts with Florida are so
exceptional so as to justify a finding of general jurisdiction. Moreover, as previously
discussed, even assuming the relevant information constitutes trade secrets11, the Court
cannot impute Pinnacle’s conduct in sharing this information to Sehnoutka LLC. See
Wallack, 278 F. Supp. 2d at 1370. Additionally, as for marketing, “[t]he Eleventh Circuit has
made clear that sales and marketing efforts, even [when actively targeting Florida], are
insufficient to render a nonresident company at home in Florida.”

See Waite v. AII

Acquisition Corp., No. 15-CV-62359-BLOOM/Valle, 2016 WL 2346768, at *6 (S.D. Fla. Mar.
8, 2016) (analyzing Schulman v. Inst. for Shipboard Educ., 624 Fed. Appx. 1002 (11th Cir.
2015)).
Here, Defendants made unrebutted assertions that Sehnoutka LLC is an Illinois
limited liability company with its principal place of business in Illinois. It is not licensed to sell
and did not sell or solicit the sale of insurance to any Florida residents. See Sehnoutka Aff.

11

Specifically, with regard to confidential information and other trade secrets, the Eleventh
Circuit has defined “trade secret” to include information not commonly known or available to the public
and “which derive[s] independent economic value . . . from not being generally known to [or] readily
ascertainable by proper means by” other parties who can obtain economic value from its use. See, e.g.,
Advantor Sys. Corp. v. DRS Technical Servs., Inc., 678 Fed. Appx. 839, 853 (11th Cir. 2017) (citing Fla.
Stat. § 688.002(4)). The limited record before the Court suggests that Pinnacle’s alleged confidential and
trade secret information is publicly available, see Sehnoutka Aff. ¶ 35, and Pinnacle has offered no
evidence to the contrary, see Ludwick Decl. ¶ 47. Accordingly, by definition, this information would not
qualify as trade secrets. Advantor, 2017 WL 412624, at *12.
-22-

¶ 8. Indeed, the LOU did not require Sehnoutka LLC to perform any of its obligations in
Florida, and the record before the Court shows that almost all of Sehnoutka LLC’s business
activities were performed in various Midwestern states. See id. ¶¶ 6-7. While it is true that
Pinnacle provided Sehnoutka LLC with assistance and support from its headquarters in
Florida, these contacts cannot be imputed from one party to another. Similarly, although
Pinnacle indicates that it provided Sehnoutka LLC with marketing materials, necessary
paperwork, and other confidential and/or trade secret information, Pinnacle failed to
demonstrate that such acts can be used as evidence of Sehnoutka LLC’s systematic
business contacts with Florida post-Daimler. Additionally, although Pinnacle and Sehnoutka
LLC communicated regularly and shared information regarding insurance applications and
policy options throughout the duration of their contractual relationship, the evidence before
the Court reflects that Sehnoutka LLC nevertheless functioned as an independent contractor
– free from Pinnacle’s direct control. Finally, while Sehnoutka and Hersey both made less
than a dozen trips to Florida on behalf of the corporation over the course of the parties’ three
and a half year relationship, under the post-Daimler paradigm, such trips for businessrelated activities do not constitute a “purposeful availment of the privileges of conducting
activities here sufficient to render [the defendant] ‘essentially at home.’” See Recao v. Bell
Helicopter Textron, No. 14-60202-CIV-ZLOCH, 2014 WL 12595302, at *4 (S.D. Fla. Sept.
23, 2014) (citing Aronson v. Celebrity Cruises, Inc., 30 F. Supp. 3d 1379, 1389 (S.D. Fla.
2014) (“[A]nnual trips to Florida to attend meetings . . . do not constitute ‘substantial activity’
in the state sufficient to establish general personal jurisdiction.”)).

-23-

Two post-Daimler Eleventh Circuit cases are instructive. In Carmouche, 789 F.3d
1201, the Eleventh Circuit considered a case in which a corporate defendant had a Florida
bank account and two Florida addresses; purchased insurance from Florida companies; filed
a financing statement with the Florida Secretary of State; joined a Florida-based trade
organization; and even contractually-consented with a third party to jurisdiction in Florida.
Id. at 1204. Despite these facts, the court held that these connections were not “‘so
substantial’ as to make this one [of] those ‘exceptional’ cases in which a foreign corporation
is ‘at home’ in a forum other than its place of incorporation or principal place of business.”
Id. (quoting Daimler, 134 S. Ct. at 761 n. 19). Similarly, in Fraser v. Smith, 594 F.3d 842
(11th Cir. 2010), the defendant – a commercial tour operator – advertised in several
publications, including the Miami Herald; procured liability insurance through a Florida
insurance agent; purchased a number of boats in Florida; and sent employees and
representatives to Florida for training and to promote its services. Id. at 846-47. Ultimately,
the court concluded “[a]fter considering all of [the defendant’s] Florida contacts in
aggregation” that they were nonetheless “insufficient to afford the Florida courts jurisdiction
over claims totally unrelated to those contacts.” Id. at 847. Here, even when taken together,
Sehnoutka LLC’s connections with Florida are far fewer than those found insufficient in
Carmouche and Fraser. See Thompson v. Carnival Corp., 174 F. Supp. 3d 1327, 1335
(S.D. Fla. 2016) (noting that, “in light of [the comparison to] Carmouche, the Court would be
hard-pressed to find” that the defendant was effectively “at home” in Florida.).
To conclude this analysis, one additional comparison is appropriate. In JLIP, LLC v.
Stratospheric Indus., Inc., No. 14-61798-CIV-COHN/SELTZER, 2014 WL 11776948 (S.D.
-24-

Fla. Dec. 17, 2014), the plaintiff argued that the defendants were subject to general
jurisdiction in Florida because the defendants did “sufficient business” with Florida-based
companies and “regularly communicated” with representatives from these companies for
four years. See id. at *2. However, defendants had no office in Florida, were not licensed
to do business in Florida, did not sell products to customers in Florida, and did not have any
employees or assets in Florida. See id. Under these circumstances, the court determined
that the plaintiff failed to demonstrate that the exercise of general jurisdiction over the
defendants would satisfy the requirements of constitutional due process. Id. at *1. In doing
so, the court summarized its reasoning in a manner that is just as applicable here as it was
in JLIP:
These facts, taken in the light most favorable to [the plaintiff], show that [the
defendant] maintained a business relationship with a [Florida-based company]
for a number of years. But in the relatively recent opinions of [Goodyear] and
[Daimler], the Supreme Court emphasized that more than business
relationships in a forum – even relationships involving regular contacts,
purchases, communications, and trainings – are necessary to subject a
defendant to suit for claims unconnected to the defendant’s forum-related
activities. Instead, a defendant must be functioning in the forum so
substantially as to be “at home” there, for example by being incorporated in
the forum or having its principal place of business in the forum.
See id. at *3 (internal citations omitted). Here, Sehnoutka LLC’s contacts are not so
“continuous and systematic” as to render the company essentially “at home” in Florida as
required to ensure compliance with the Due Process Clause. Thus, consistent with the
dictates of Daimler, the Court determines that Pinnacle has failed to demonstrate that the
Court can exercise general jurisdiction over Sehnoutka LLC, and the Motion as to

-25-

Sehnoutka LLC is due to be granted to the extent that Sehnoutka LLC challenges the
existence of personal jurisdiction.
B.

The Individual Defendants

Next, the Court turns to the Individual Defendants’ challenge to the existence of
personal jurisdiction over them. In the TAC, Pinnacle alleges that the Individual Defendants
acted both “individually and as agents of Sehnoutka LLC” throughout the course of their
business relationship with Pinnacle, and also that the Individual Defendants made written
demands for compensation from Pinnacle in their individual capacities. See TAC ¶ 8, 26,
29-30. Perhaps viewing this as an attempt to “pierce the corporate veil” of Sehnoutka LLC
for jurisdictional purposes, the Individual Defendants argue in the Motion that the “corporate
shield doctrine” – which prohibits the exercise of personal jurisdiction over corporate
employees whose only contact with the forum state was in furtherance of the corporation’s
interests – operates to bar the exercise of general jurisdiction over them. See Motion at 1921. Indeed, Sehnoutka states that he was “at all times[] employed by Sehnoutka LLC and
acting in his representative capacity . . . in his dealings with Pinnacle.” Motion at 20 (citing
Sehnoutka Aff. ¶¶ 3, 8-10, 13-14, 18-20). Hersey likewise asserts that she served as an
independent contractor of Sehnoutka LLC and operated in this capacity at all times relevant
to this action. See id. (citing Hersey Aff. ¶¶ 3-4). Although the corporate shield doctrine
may be applicable here, the Individual Defendants’ reliance on this doctrine is unnecessary
in light of the Goodyear and Daimler decisions.

-26-

Notably, Goodyear and Daimler confirm that the paradigm forum for the exercise of
general jurisdiction over an individual defendant is the individual’s state of domicile.
Daimler, 134 S. Ct. at 760; Goodyear, 564 U.S. at 924. As neither of the Individual
Defendants is domiciled in Florida, see TAC ¶¶ 3-4, the Court may appropriately conclude
that it cannot exercise general jurisdiction over them. See Baker v. Kinsey, No. 4:16-CV445VEH, 2016 WL 3924222, at *1 (N.D. Ala. July 21, 2016) (quoting Goodyear, 564 U.S. at 924)
(holding that, because the defendant was not a forum state domiciliary, “general jurisdiction
is out”); see also Byrd v. Hishbach, LLC, No. 2:16-CV-01449-KOB, 2017 WL 2730399, at
*4 (N.D. Ala. June 26, 2017) (concluding that the court lacked general jurisdiction over
individual defendants where the defendants were not residents of, and did not own property
or conduct business in, the forum state).
Moreover, even where a defendant’s contacts with the forum state are arguably
“substantial and not isolated[,]” such as when an individual owned part of a Florida business,
previously resided in Florida, made occasional trips to Florida, and derived business
revenue from Florida, these contacts nevertheless have been found to be insufficiently
“continuous and systematic” to render the individual “essentially at home in the forum state”
for the purposes of conferring general jurisdiction. See Hard Candy, LLC v. Hard Candy
Fitness, LLC, 106 F. Supp. 3d 1231, 1250-52 (S.D. Fla. 2015). A review of post-Goodyear
and Daimler case law supports this conclusion. For example, in Duncanson v. Wine &
Canvas Dev., LLC, No. 6:14-CV-704-ORL-40KRS, 2015 WL 12838359, at *18 (M.D. Fla.
June 24, 2015), the court determined that occasional visits to Florida – even in one’s

-27-

capacity as an employee – do not support the exercise of general jurisdiction over an
individual defendant.

In Ure v. Oceania Cruises, Inc., No. 14-21340-CIV-

GAYLES/TURNOFF, 2017 WL 2378200, at *1-*2 (S.D. Fla. June 1, 2017), plaintiffs brought
suit against a cruise line and its employee, a doctor, after an individual sought medical
treatment from the doctor before suffering permanent injury and later dying from her illness.
There, the court noted that the defendant-employee: (1) signed an employment agreement
with a Florida-based forum selection clause; (2) attended training and conferences in
Florida; (3) returned to Florida at the conclusion of each voyage; and (4) possessed a
Florida bank account. See id. at *3. Even after considering all of these contacts together,
the court determined that the doctor did not have “systematic and continuous contact” such
that he was effectively “at home” in Florida. Id. More recently, in McCullough v. Royal
Caribbean Cruises, Ltd., No. 16-CV-20194-GAYLES, 2017 WL 3115751, at *9 (S.D. Fla.
July 21, 2017), the defendant-employees: (1) regularly communicated with their employer
in Miami; (2) submitted invoices to their employer’s Miami corporate headquarters; (3)
received a cell phone with a Miami-based area code; (4) used their employer’s letterhead
for sending mail; and (5) regularly held themselves out as corporate employees. However,
neither defendant was a citizen of Florida. Id. On balance, the court determined that none
of these contacts were sufficient to make Florida the equivalent of the defendants’ domicile
– “the place of his true, fixed, and permanent home and principal establishment, and to
which he has the intention of returning whenever he is absent therefrom.” Id. at *10 (quoting
McCormick v. Aderholt, 293 F.3d 1254, 1258 (11th Cir. 2002)).

-28-

Here, both Individual Defendants maintain that they are not and have never been
residents of Florida, see Sehnoutka Aff. ¶ 2; Hersey Aff. ¶ 9, that they do not conduct any
business in Florida on an individual basis, see Sehnoutka Aff. ¶9; Hersey Aff. ¶ 5, and that
their travels to Florida were in furtherance of the business of Sehnoutka LLC and not in their
individual capacities, see Sehnoutka Aff. ¶ 19; Hersey Aff. ¶ 6. Pinnacle offers no evidence
to contest these assertions. Instead, Pinnacle emphasizes the quantity and nature of its
communications with the Individual Defendants – purportedly indicating a close working
relationship between the parties – as a justification for a finding of personal jurisdiction over
them. See generally Response. Specifically, Pinnacle points to scheduled weekly calls and
“almost daily” e-mail exchanges as evidence of the Individual Defendants’ constant contact
with Pinnacle. See id. at 9. However, “continuous communications” and a “continuous
business relationship” with a Florida-based plaintiff do not equate to “sufficient minimum
contacts with the forum state to satisfy constitutional due process requirements.” See, e.g.,
S.O.S. Res. Servs., Inc. v. Bowers, No. 14-22789-CIV, 2015 WL 2415332, at *3 (S.D. Fla.
May 21, 2015) (citing Sculptchair, Inc., 94 F.3d at 626).
Additionally, many of the cases cited by Pinnacle in support of the exercise of
general jurisdiction over the Individual Defendants concern defendant-employees whose
contacts with Florida arose out of a direct employment relationship with their plaintiffemployer. See, e.g., Whitlock, 276 F. Supp. 2d at 1261 (finding sufficient minimum contacts
where a Florida-based plaintiff provided its defendant-employee with ongoing instruction
regarding his duties and responsibilities as an employee); Nordmark, 557 So. 2d at 650-51

-29-

(finding sufficient minimum contacts where a Florida-based plaintiff provided its out-of-state
defendant-employee with “proprietary information, trade secrets, managerial training and
assistance, and regular direct[ion] and supervis[ion]” of his daily activities). Although the
contacts between the plaintiffs and their employees in those cases may have been viewed
as sufficient to confer general jurisdiction before Goodyear and Daimler, more recent
authority warrants a contrary conclusion here.12 See, e.g.,McCullough, 2017 WL 3115751,
at *9-*10; Ure, 2017 WL 2378200, at *3. Indeed, at least one court has concluded that the
fact that a defendant “has a certain number of contacts in Florida by virtue of his
employment is immaterial” to the general personal jurisdiction analysis. McCullough, 2017
WL 3115751, at *10. In sum, the Individual Defendants have successfully demonstrated that
their contacts with Florida are relatively insubstantial such that Florida is not the functional
equivalent of their states of domicile. As such, Pinnacle failed to carry its burden of proving
the Court can exercise personal jurisdiction over the Individual Defendants, and the Motion
to dismiss Pinnacle’s claims against them is due to be granted.13

12

Additionally, while Pinnacle maintains that it had “significant oversight over the
[Individual] Defendants in their roles as contractors of Pinnacle[,]” Response at 3, Pinnacle cites no postGoodyear or Daimler authority indicating that an employer’s supervision and control of a non-resident
defendant’s daily work activities is sufficient to invoke general personal jurisdiction over that individual
in the forum state, see generally Response.
13

As Pinnacle has failed to satisfy the “minimum contacts” prong of the due process
analysis, the Court need not determine whether the exercise of personal jurisdiction over Defendants
would comport with traditional notions of fair play and substantial justice. See Lawson Cattle & Equip.,
Inc. v. Pasture Renovators LLC, 139 Fed. Appx. 140, 144 n.4 (11th Cir. 2005) (“Because we conclude
that there were insufficient minimum contacts for the exercise of personal jurisdiction over [defendant],
we need not address [the fair play and substantial justice] requirement.”).
-30-

IV.

Conclusion
For the foregoing reasons, the Court determines that this is not one of those

“exceptional cases” where Defendants’ contacts with Florida are so substantial as to render
them effectively “at home” here, and consequently that the Court’s exercise of personal
jurisdiction over Defendants in this action does not comport with the requirements of the Due
Process Clause. Therefore, the Court concludes that the Defendants’ Motion is due to be
granted and Pinnacle’s claims against Defendants are due to be dismissed without prejudice
for lack of personal jurisdiction.14 In light of the foregoing, it is
ORDERED:
1.

Defendants’ Motion to Dismiss Third Amended Complaint (Doc. No. 31) is
GRANTED.

2.

This action is DISMISSED WITHOUT PREJUDICE.

3.

The Clerk of the Court is directed to terminate all pending motions and close
the file.

DONE AND ORDERED at Jacksonville, Florida on July 27, 2017.

14

As a result, the Court will not consider Defendants’ substantive arguments regarding the

TAC.
-31-

lc24
Copies to:
Counsel of Record

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