Doe v. Radiancy, Inc. et al

Filing 64

ORDER granting 53 motion to dismiss. Signed by Judge Roy B. Dalton, Jr. on 6/22/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
LINDA ANDREW,
Plaintiff,
v.

Case No. 6:16-cv-1061-Orl-37GJK

RADIANCY, INC.; PHOTOMEDEX,
INC.; and DOLEV RAFAELI,
Defendants.
ORDER
This cause is before the Court on the Defendants Dolev Rafaeli’s and Photomedex,
Inc.’s Motion to Dismiss the First Amended Complaint and Memorandum of Law in
Support Thereof (Doc. 53), and Plaintiff’s Opposition to Motion to Dismiss First
Amended Complaint Against Defendants Rafaeli and Photomedex, Inc., and
Incorporated Memorandum of Law (Doc. 55).
I.

BACKGROUND

On February 14, 2017, Plaintiff Linda Andrew named three Defendants—
Radiancy, Inc. (“Radiancy”), Photomedex, Inc. (“Parent Company”), and Dolev Rafaeli
(“Rafaeli”), in her Amended Complaint in this product liability action, which concerns a
“no! no!” hair removal device, Model 8800 (“Device”). 1 (See Doc. 52.) After Radiancy’s
subsidiary—non-party Radiancy (Israel) Ltd. (“Radiancy (Israel)”)—manufactured the

Based on diversity jurisdiction, the Defendants removed the action to this Court
from the Ninth Judicial Circuit in and for Orange County, Florida. (Doc. 1.)
1

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Device, Radiancy sold it to Plaintiff’s spouse in Florida in December 2012. (See Doc. 52,
¶¶ 4, 6, 10; see also Doc. 39-7, ¶¶ 6–8.)
Plaintiff is a breast cancer survivor who endured a “partial mastectomy of her right
breast” and “axillary lymph node dissection” in 2000. (See Doc. 52, ¶16.) As a result, she
suffers from secondary lymphedema (“Condition”); however, in December 2012—when
her spouse gave her the Device as a Christmas gift—Plaintiff alleges that her “extremities
were free from edema.” 2 (See id.) That changed in mid-January 2013, when she allegedly
used the Device on her right arm. (See id.) Although Plaintiff immediately stopped using
the Device when she “felt a tingling or pins and needles sensation,” by the next day the
Condition had returned in her right arm (“Recurrence”). (See id. ¶¶13–25.) Despite
extensive medical treatment and self-care, the Recurrence has been largely unrelieved.
(See id. (alleging that the Recurrence “remains a major problem in her life”).)
Plaintiff alleges that the proximate cause of the Recurrence was the “unperceived
high temperature generated by the Device”—at least 451˚F—which was “transferred
along the hair shaft through the surface of the skin” (“Heat”). (See id. ¶ 28.) Plaintiff
contends that Defendants “knew full well that the Device had the capacity to burn the
user.” (See id. ¶38.) Further, the Defendants allegedly knew or should have known that
the Heat produced by the Device was “more than sufficient to literally ‘fry’ a
lymphatically obstructed limb.” (See id. ¶¶ 39, 40.)

According to the U.S. National Library of Medicine, “edema” is swelling caused
by excess fluid in body tissues, and lymphedema is the “build-up of fluid in soft body
tissues
when
the
lymph
system
is
damaged
or
blocked.”
See
https://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0025392 (visited April 6, 2017).
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Despite Defendants’ alleged knowledge of the risks the Device posed for a large
group of customers like Plaintiff, and due to marketing and profit concerns, the
Defendants allegedly chose to: (1) provide inadequate and inappropriate warnings
concerning only the appearance of a consumer’s skin; (2) withhold warnings to the large
number of consumers at risk of lymphedema that “no hair removal device which
generates heat is suitable for vascularly impaired individuals;” and (3) market and
advertise the Device as “safe and effective” and “Doctor recommended.” (See id. ¶¶ 36,
43; see also id. ¶¶ 51, 52, 55.) As such, Plaintiff alleges that the Device was defective, and
all three Defendants are jointly and severally liable to her based on strict liability and
negligence. (See id. ¶¶ 54, 55; see also id. ¶¶ 10–14, 17, 24–25, 28, 32–39, 43, 48–62.)
Radiancy answered the Amended Complaint and admitted that: (1) it “markets,
advertises, and distributes” the Device in the United States; (2) it is a subsidiary of Parent
Company; and (3) Rafaeli is its CEO and President. (See Doc. 58, ¶ 2, 4, 6.) Parent
Company and Rafaeli (“Moving Defendants”) did not answer; rather, they jointly
moved to dismiss Plaintiff’s negligence and strict liability claims against them for lack of
personal jurisdiction and failure to state a claim. (Doc. 53.) Plaintiff responded (Doc. 55
(“Response”)), and the matter is now ripe for adjudication.
II.

LEGAL STANDARDS

When a plaintiff fails to establish “a prima facie case of personal jurisdiction” in
her complaint, defendants may move to dismiss under Rule 12(b)(2). See Meier v. Sun Int’l
Hotels, Ltd., 288 F.3d 1264, 1268–69 (11th Cir. 2002). There are two requirements for a
prima facie case: (1) first, a basis for jurisdiction must exist under Florida’s Long-Arm
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Statute, Fla. Stat. § 48.193 (“FLAS”); and (2) second, the defendants’ contacts with Florida
must be sufficient to satisfy the Due Process Clause of the Fifth Amendment to the
U.S. Constitution (“DP Clause”). 3 See Mut. Serv. Ins. Co. v. Frit Indus., Inc., 358 F.3d 1312,
1319 (11th Cir. 2004); Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 500–02 (Fla. 1989);
see also Bristol Myers Squibb Co. v. Superior Court of Cal., San Francisco, Cnty., No. 16-466,
2017 WL 2621322, at *11 (U.S. June 19, 2017) (noting that the Fifth Amendment imposes
the same restrictions on the exercise of personal jurisdiction by federal courts that the
Fourteenth Amendment imposes on state courts).
If the complaint states a prima facie case, then a defendant must support its
Rule 12(b)(2) motion with non-conclusory affidavits challenging the jurisdictional
allegations and showing that personal jurisdiction is absent. See Madara v. Hall,
916 F.2d 1510, 1514 (11th Cir. 1990). If the affidavits are sufficient, then the burden shifts
back to the plaintiff to establish her prima facie case with evidence sufficient to withstand
a motion for directed verdict. See United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274
(11th Cir. 2009) (explaining that the burden of production shifts to the plaintiff when the
defendant makes an evidentiary showing “of the inapplicability of the long-arm statute”).
“[T]he issue of whether personal jurisdiction is present is a question of law” that
courts must resolve on a claim-by-claim basis. See Oldfield v. Pueblo De Bahia Lora, S.A.,

Under the DP Clause, a court may not exercise personal jurisdiction over a
non-resident defendant unless such defendant has sufficient “minimum contacts with
[the court’s forum] such that the maintenance of the suit does not offend traditional
notions of fair play and substantial justice.” See Goodyear Dunlop Tires Operations, S.A. v.
Brown, 564 U.S. 915, 923 (2011) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (2003)).
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558 F.3d 1210, 1217 (11th Cir. 2009). Courts must accept well-pled and unrefuted factual
allegations as true. See Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1350
(11th Cir. 2013). But if there is a conflict in the record, courts must “construe all reasonable
inferences in favor of the non-movant plaintiff” and deny the Rule 12(b)(2) motion if the
“inferences are sufficient to defeat a motion for judgment as a matter of law.” See
PVC Windoors, Inc. v. Babbitbay Beach Constr., N.V., 598 F.3d 802, 809–10 (11th Cir. 2010).
If the necessary inferences do not establish a prima facie case, then courts are “obligated”
to grant the Rule 12(b)(2) motion and dismiss any unsupported claims without prejudice.
See Posner v. Essex Ins. Co., 178 F.3d 1209, 1214 n.6 (11th Cir. 1999).
III.

DISCUSSION

Under Florida’s Long Arm Statute (“FLAS”), a party subjects itself to the specific
jurisdiction of Florida courts “for any cause of action arising from” certain enumerated
acts, if the acts are done by the party “personally or through an agent.” See
Fla. Stat. § 48.193(1)(a). The enumerated acts include “[c]ommitting a tortious act” in
Florida and causing injury to a plaintiff in Florida under certain circumstances. Id.
§§ 48.193(1)(a)(2) & (6). Where a plaintiff asserts a claim that a defective product
purchased in Florida caused her harm in Florida, the court may exercise specific personal
jurisdiction over the manufacturer, wholesaler, and distributor who intentionally caused
the product to enter Florida. 4 See Wetzel v. Fisherman’s Wharf of Pompano Beach, Inc.,

The reach of FLAS is a question of Florida law, which this Court must resolve “as
would the Florida Supreme Court.” See Louis Vuitton, 736 F.3d at 1352. In Florida, FLAS
must be “strictly construed.” See Thomas Jefferson Univ. v. Romer, 710 So. 2d 67, 71
(Fla. 4th DCA 1998).
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771 So. 2d 1195, 1198–99 (Fla. 4th DCA 2000) (finding that personal jurisdiction existed
based on defendant’s “hands-on contact with the goods before their arrival in Florida”). 5
A.

The Parent Company
Parent Company is a Nevada corporation with its principal place of business in

Pennsylvania. (See Doc. 52, ¶ 3; see also Doc. 8, ¶ 10; Doc. 44, pp. 32–33.) The Parent
Company “does not have operations, facilities, employees or offices in the state of
Florida” (Doc. 8, ¶ 14), but Plaintiff alleges that FLAS is met because the Parent Company
caused her injury and committed tortious acts in Florida by marketing, advertising, and
distributing the Device in Florida (Doc. 52, ¶¶ 6, 8). Such allegations satisfy Plaintiff’s
initial pleading burden; thus, the Moving Defendants were required to refute Plaintiff’s
allegations with non-conclusory affidavits or declarations.
The Moving Defendants did not file affidavits responding to the jurisdictional
allegations set forth in Plaintiff’s Amended Complaint (see Doc. 53), but they previously
filed an affidavit and declarations from Rafaeli in relation to the Notice of Removal
(Doc. 1), a Motion to Dismiss the initial Complaint (Docs. 7, 11), and a Response in
Opposition to Plaintiff’s Motion to Amend (Doc. 39). (Doc. 2 (“Removal Affidavit”);

See Brown v. Bottling Grp., LLC, 159 F. Supp. 3d 1308, 1311–12 (M.D. Fla. 2016)
(noting that the DP Clause is satisfied in a product liability action when distribution of
the product in a particular forum is intended by the non-resident defendant); Cubbage v.
Novartis Pharm. Corp., No. 5:16-cv-129-Oc-30PRL, 2016 WL 3595747, at *3 (M.D. Fla.
Jul. 5, 2016) (finding FLAS satisfied where the defendant distributed product in Florida
and plaintiff was injured in Florida); Davis v. Pyrofax Gas Corp., 492 So. 2d 1044, 1045–46
(Fla. 1986) (noting that personal jurisdiction in a product liability action may be had
“where the defendants are allegedly engaged in solicitation activities and promoting or
distributing” the product in Florida).
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Doc. 8 (“Rafaeli Affidavit”); Doc. 39-7 (“Rafaeli Declaration”).) The Court has
considered the evidence specifically cited in the MTD. 6 (See Doc. 53, p. 17 (citing the
Rafaeli Affidavit); id. at 25 (asserting that an uncited “affidavit of Defendant Rafaeli is
complete and comprehensive”).)
According to the Rafaeli Declaration: (1) the Device was distributed by Radiancy
and was manufactured by a related company that is not a party to this action (see
Doc. 39-7, ¶¶6–9); 7 and (2) Parent Company did not manufacture, distribute, or sell the
Device, and it had no “involvement with the [D]evice’s development, labeling,
marketing, advertising, design, or assembly.” (See Doc. 39-7, ¶¶ 10, 33; see also Doc. 8.)
Although Plaintiff does not refute these facts, she does argue that FLAS is nonetheless
satisfied. (See Doc. 55, pp. 20–21.) The Court disagrees.
The mere fact that the distributor of a product is a subsidiary “is insufficient to
form a basis for the assertion of personal jurisdiction” over the subsidiary’s parent
company. See Fla. v. Am. Tobacco Co., 707 So. 2d 851, 854–55 (Fla. 4th DCA 1998); see also
Hoescht Group v. Lozano, 813 So. 2d 180, 181 (Fla. 3d DCA 2002) (“The activities of a
subsidiary cannot be imputed to the parent corporation for purposes of subjecting the

The Court also has considered additional material filed by Plaintiff and the
arguments made at the hearing on September 12, 2016. (See Doc. 24; Doc. 37, pp. 41–53
(providing a copy of the “User Manual”); id. at 55–68 (providing a copy of the “Quick
Start Manual”); id. at 71–74 (providing copies of advertisements); Doc. 44, pp. 24–28
(providing a copy of the Defendants’ initial disclosures); id. at 30–46 (providing a copy of
a Form 10-K for Parent Company).)
7 (See also Doc. 52, ¶ 4 (alleging that Radiancy sells the Device “directly to
consumers through online and mass media advertising” and in retail outlets); id. ¶ 10
(alleging that the Device was purchased “directly from Radiancy”).)
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latter to long-arm jurisdiction” in Florida.). Personal jurisdiction over a parent company
does not exist unless the parent company exercises “control to the extent the subsidiary
‘manifests no separate corporate interests of its own and functions solely to achieve the
purposes of the dominant corporation.’” See Vantage View, Inc. v. Bali E. Dev. Corp.,
421 So. 2d 728, 733 (Fla. 4th DCA 1982) (quoting Baker v. Raymond Int’l, Inc., 656 F.2d 173,
181 (5th Cir. 1981)). 8 Plaintiff’s contentions that Radiancy’s revenue is “upstreamed” to
Parent Company and Parent Company refers to Radiancy as a “business segment” do not
establish the control required by Florida law. (See Doc. 55, p. 21.) Thus, the exercise of
personal jurisdiction is not permitted under FLAS.
B.

Rafaeli
As with Parent Company, Plaintiff alleges in her Amended Complaint that this

Court has personal jurisdiction over Rafaeli—who is a resident of New Jersey—because
he injured Plaintiff and committed tortious acts in Florida by marketing, advertising, and
causing the Device to be distributed in Florida where it caused injury to Plaintiff. (See
Doc. 52, ¶¶ 6, 8, 51, 58, 61.) Plaintiff additionally alleges that:
(1)

Rafaeli is an industrial engineer and inventor who
serves as CEO of Radiancy and Parent Company (see
id. ¶¶ 6, 40);

(2)

as the inventor of “several heat generating hair
removal devices,” Rafaeli had unique and full
“knowledge of the dangers” that high temperature

See also Abramson v. Walt Disney Co., 132 F. App’x 273, 275–76 (11th Cir. 2005)
(affirming dismissal of parent company where plaintiff did not establish sufficient control
over subsidiary); Dev. Corp. of Palm Beach v. WBC Const., LLC, 925 So. 2d 1156, 1161–62
(Fla. 4th DCA 2006) (same); Mary Babb Morris, J.D., et al., Foreign Corporations—Presence
in Florida of Subsidiary Corporation, 8B Fla. Jur. 2d Bus. Relationships § 432 (2017).
8

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hair removal devices pose to skin (see id. ¶¶ 40–42, 51,
53);
(3)

Rafaeli “has exerted significant influence” over
Radiancy’s policies and operations and was
“personally involved in developing,” marketing, and
advertising the Device (see id. ¶¶ 48, 51);

(4)

Rafaeli “caused the distribution of the Device” to
“lymphatically compromised individuals” who he
knew would be harmed by the high temperatures
produced by the Device (see id. ¶ 51);

(5)

Rafaeli received “a percentage of the gross sales” of the
Device, and as a result, he “prioritized sales and
marketing concerns over known safety concerns” (see
id. ¶¶ 52, 55, 56; see also Doc. 44, p. 45).

Rafaeli argues that, under the corporate shield doctrine, the Court cannot exercise
personal jurisdiction over him because: (1) Plaintiff’s allegations “are based on his actions
as a corporate officer in furtherance of Radiancy’s business” (Doc. 53, p. 11); (2) “outside
of his role as an employee of Radiancy,” Rafaeli’s “only contact” with Florida “is
ownership” of a vacation condominium in Miami (id. at 13); (3) Rafaeli is “a non-resident
employee [of Radiancy], who worked only outside of Florida” (id. at 12); and (4) “[a]ny
allegation of wrongdoing by [Rafaeli], which is strongly denied, is at best the actions of
an employee and officer of Radiancy” (id. at 14 (“Corporate Shield Argument”)).
Under the corporate shield doctrine, when a corporation commits a tortious act in
Florida, its “chief executive officer” is not subject to personal jurisdiction “by virtue of his
position.” Doe v. Thompson, 620 So. 2d 1004, 1006 (Fla. 1993). 9 The “rational” for the

In Doe, the Florida Supreme Court held that the corporate shield doctrine
precluded a Florida court from exercising personal jurisdiction in a negligence action
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corporate shield doctrine is:
The notion that it is unfair to force an individual to defend a
suit brought against him personally in a forum with which his
only relevant contacts are acts performed not for his own
benefit but for the benefit of his employer.
Id. (quoting Estabrook v. Wetmore, 529 A.2d 956, 959 (N.H. 1987)). The corporate shield
doctrine does not apply where the corporate officer’s wrongful conduct occurs when he
is physically present in Florida. See Kitroser v. Hurt, 85 So. 3d 1084, 1088 (Fla. 2012)
(clarifying that the corporate shield doctrine applies only to “acts performed by a person
exclusively in his corporate capacity [and] in a foreign state”); see also Lane v. XYZ Venture
Partners, LLC, 322 F. App’x 675, 679 (11th Cir. 2009). It also does not protect a corporate
officer accused of “fraud or other intentional misconduct.” See Doe, 620 So. 2d at 1006,
n.1.
Rafaeli supports his Corporate Shield Argument with his own averments that:
(1) he has not “performed any work related to Radiancy . . . at [his condominium in
Florida] between June 1, 2015 and present, or in the State of Florida at any time (Doc. 8,
¶ 26); and (2) in his capacity as President and CEO of Radiancy, he has not maintained or
“occupied an office in the State of Florida for purposes of work related to any of the
products marketed by Radiancy” (id. ¶ 21). 10 Although Plaintiff does not refute these

over a corporate officer who averred that “he did not personally do anything in Florida:
he did not personally operate a business in Florida; commit a tortious act in Florida, or
cause injury in Florida.” Doe, 620 So. 2d at 1006 (noting that the corporate defendant’s
“allegedly negligent actions are not alleged to have been taken outside his duties” as a
corporate officer).
10 The Rafaeli Affidavit includes additional refutations. (See Doc. 8.) For instance,
Rafaeli avers that:
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averments, 11 she argues that the Court still may exercise personal jurisdiction over Rafaeli
because: (1) he has not explicitly refuted allegations in the Amended Complaint that his
conduct outside of Florida was knowing, “willful,” and avaricious; (2) he is the owner of
a “luxury home” in Florida; (3) he will suffer no burden from litigating in Florida; and
(4) the interests of justice favor resolution of all of Plaintiff’s claims in this action. (See
Doc. 55, pp. 13–15, 18–20.) Again, the Court disagrees.
First, the Court rejects Plaintiff’s attempt to equate her claims to intentionally
tortious conduct. Negligence and strict liability are not intentional torts, and the
Amended Complaint includes no allegations that Rafaeli specifically directed his acts
toward Florida with the expectation that harm to Plaintiff in Florida would result. (See
Doc. 52.) Such circumstances are required before courts will exercise personal jurisdiction

(Doc. 8, ¶ 16; see id. ¶¶ 15, 19–22, 26, 27 (averring that any work Rafaeli performed “was
as a corporate officer or employee of the distributor of the Product”).) These averments
do not help Rafaeli because the referenced “Product” is not the Device—it is another hair
removal product that Rafaeli contends is entirely distinct from the Device. (See Doc. 39-7,
¶¶ 11, 25; see also Doc. 5.)
11 Plaintiff concedes that “Rafaeli never physically ‘entered’ Florida to commit a
tortious act.” (Doc. 55, p. 18.)
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over a defendant who commits a tort while physically outside of Florida. See Wendt v.
Horowitz, 822 So. 2d 1252, 1260 (Fla. 2002) (confirming that a defendant’s physical
presence in Florida is not required to meet the commission of a tort requirement of FLAS
when the tort is intentional and is expected to cause injury in Florida); Rensin v. State,
Office of Atty. Gen., Dep’t of Legal Affairs, 18 So. 3d 572, 575–76 (Fla. 1st DCA 2009)
(summarizing intentional tort cases where the corporate shield doctrine was
disregarded); see also Calder v. Jones, 465 U.S. 783, 789–90 (1984) (explaining the test to
apply in cases involving intentional torts).
The Court also rejects Plaintiff’s argument concerning Rafaeli’s ownership of the
Condominium because Plaintiff’s claims do not arise from or relate in any way to the
Condominium. The law is clear that, when specific jurisdiction is at issue, the Court must
disregard forum contacts that are not connected to the plaintiff’s causes of action. See
Bristol-Myers Squibb, 2017 WL 2621322, at *8.
Finally, the Court does find that Plaintiff’s arguments concerning the burden to
Rafaeli and the interests of justice are compelling. 12 Nonetheless, as recognized in a recent
Supreme Court decision, those interests cannot overcome the federalism concerns served
by enforcing specific jurisdiction requirements:

The burden of litigating in Florida for Rafaeli is minimal given that he will be
participating in this action regardless of whether he is a party. (See Doc. 44, p. 25
(identifying only Rafaeli as having “discoverable information”).) On the other hand,
Florida has a substantial interest in adjudicating this dispute given that Plaintiff resides
in Florida. Further, the interest of the interstate judicial system in obtaining convenient
and effective resolution of disputes would be served by exercising personal jurisdiction
over Rafaeli because the Court is already considering Plaintiff’s claims against Radiancy,
and it makes little sense to largely duplicate these proceedings in a New Jersey court.
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[e]ven if the defendant would suffer minimal or no
inconvenience from being forced to litigate before the
tribunals of another State; even if the forum State has a strong
interest in applying its law to the controversy; even if the
forum State is the most convenient location for litigation, the
Due Process Clause, acting as an instrument of interstate
federalism, may sometimes act to divest the State of its power
to render a valid judgment.
Id. (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 294 (1980)).
“[R]estrictions on personal jurisdiction ‘are more than a guarantee of immunity from
inconvenient or distant litigation. They are consequence of the territorial limitations on
the power of the respective States.’” Id. (quoting Hanson v. Denckla, 357 U.S. 235, 251
(1958)).
Here, restrictions on personal jurisdiction preclude this Court from considering
Plaintiff’s claims against Rafaeli and Parent Company. If Plaintiff wishes to pursue such
claims she must bring them in another forum. The MTD is due to be granted.
III.

CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

Defendants Dolev Rafaeli’s and Photomedex, Inc.’s Motion to Dismiss the
First Amended Complaint and Memorandum of Law in Support Thereof
(Doc. 53) is GRANTED.

2.

Plaintiff’s claims against Defendant Photomedex, Inc. and Dolev Rafaeli are
DISMISSED WITHOUT PREJUDICE for lack of personal jurisdiction.

3.

The Clerk is DIRECTED to terminate Photomedex, Inc. and Dolev Rafaeli
as parties to this action.
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4.

This action will proceed with respect to Plaintiff’s claims against Defendant
Radiancy, Inc.

DONE AND ORDERED in Orlando, Florida, this 22d day of June, 2017.

Copies to:
Counsel of Record

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