Encore Select, Inc. v. The Great Atlantic & Pacific Tea Company, Inc.
Filing
14
ORDER denying 4 --motion to dismiss; transferring the action to the Newark Division of the District of New Jersey. Signed by Judge Steven D. Merryday on 6/5/2014. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ENCORE SELECT, INC.,
Plaintiff,
v.
CASE NO.: 8:14-cv-935-T-23TBM
THE GREAT ATLANTIC & PACIFIC
TEA COMPANY, INC.,
Defendant.
__________________________________/
ORDER
A Florida corporation with a principal place of business in Florida, the plaintiff
alleges (Doc. 2) four claims. A Maryland corporation with a principal place of
business in New Jersey, the defendant moves (Doc. 4) to dismiss for lack of personal
jurisdiction and for failure to join an indispensable party.
“The plaintiff has the burden of establishing a prima facie case of personal
jurisdiction over a nonresident defendant.” Meier ex rel. Meier v. Sun Int’l Hotels, Ltd.,
288 F.3d 1264, 1268-69 (11th Cir. 2002). To establish personal jurisdiction, the
complaint identifies a transaction between the defendant and the plaintiff in which
the defendant ordered and received $130,502.40 worth of hats and shirts from the
plaintiff. However, “it is clear that the defendant[’s] alleged failure to pay money
owed under the contract in Florida is insufficient, by itself, to exercise [personal]
jurisdiction . . . .” Yparrea v. Twin Cities Wholesale, Inc., 2010 WL 1994064 (N.D. Fla.
May 17, 2010) (Vinson, J.).
Labeling the one contract with the plaintiff insufficient, the defendant moves to
dismiss and submits an affidavit that declares that the defendant neither maintains an
office in Florida; nor owns property in Florida; nor maintains a bank account in
Florida; nor is registered to conduct business in Florida; nor operates a store in
Florida; nor, other than through an on-line pharmacy, derives revenue from Florida.
The plaintiff’s response to the defendant’s motion cites no fact supporting
jurisdiction. Instead, the plaintiff’s response offers general statements of jurisdiction,
such as, “[T]he [d]efendant’s business with the [p]laintiff . . . constitutes operating
conducting, engaging in[,] and carrying on its business in the state of Florida.”
(Doc. 13 at 7) Implicitly recognizing the deficiency, the plaintiff requests
jurisdictional discovery but fails to identify the information that might aid in
determining whether personal jurisdiction exists. Jurisdictional discovery “is not a
vehicle for a fishing expedition in hopes that discovery will sustain the exercise of
personal jurisdiction.” Atlantis Hydroponics, Inc. v. Int’l Growers Supply, Inc., 915 F.
Supp. 2d 1365, 1380 (N.D. Ga. 2013) (internal quotation marks omitted) (Pannell,
J.).1 Like the plaintiff in Atlantis, the plaintiff in this action identifies no disputed fact;
1
The parties discuss the defendant’s sale of pharmaceuticals to Florida residents, which is
pertinent only if the sale justifies general jurisdiction. However, any argument that the defendant’s
sale of pharmaceuticals in Florida is “so ‘continuous and systematic’ as to render the[ defendant]
essentially at home in the forum” is implausible. Goodyear Dunlop Tires Operations, S.A. v. Brown, 131
S. Ct. 2846, 2851 (2011).
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the plaintiff “merely has a hunch that there may be facts – or a desire to find out if
there are any facts – that justify the exercise of personal jurisdiction. On this basis,
the plaintiff has not shown it is entitled to jurisdictional discovery.” Atlantis, 915 F.
Supp. 2d at 1380.
Although no jurisdiction over the defendant exists, the defendant’s motion
(Doc. 4) to dismiss for lack of personal jurisdiction is DENIED. “Rather than
automatically dismissing a case for lack of personal jurisdiction . . . , the courts have
discretion to transfer a case to a district that does have personal jurisdiction over the
nonresident defendants.” Peterson v. HVM L.L.C., 2014 WL 688140 (N.D. Ga. Feb.
21, 2014) (Story, J.). The plaintiff requests, if no personal jurisdiction exists, transfer
to the District of New Jersey. (Doc. 13 at 8) The defendant is subject to personal
jurisdiction in New Jersey because the defendant’s principal place of business is in
New Jersey, and the defendant offers no reason for dismissal rather than transfer.
Accordingly, this action is TRANSFERRED to the Newark Division of the District
of New Jersey.2
ORDERED in Tampa, Florida, on June 5, 2014.
2
Even if jurisdiction existed, this order would transfer this action under Section 1404 to the
District of New Jersey.
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