Bryant v. Hasbro, Inc. et al

Filing 40

ORDERED: 1. Hasbro, Inc.'s Dispositive Motion to Dismiss Plaintiff's Amended Complaint 22 is GRANTED because Plaintiff did not allege facts sufficient to establish a prima facie case of personal jurisdiction over Hasbro. 2. Given P laintiff's pro se status, the Court will give Plaintiff one final opportunity to amend her complaint. Plaintiff shall have FOURTEEN (14) DAYS from the date of this Order to file a Second Amended Complaint, which cures the deficiencies addressed in this Order. Failure to file a Second Amended Complaint within the time provided will result in dismissal of this action without further notice. Signed by Judge Charlene Edwards Honeywell on 5/22/2019. (LJB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ANNE BRYANT,
Plaintiff,
v.

Case No: 8:18-cv-1336-T-36CPT

HASBRO, INC., JOHN AND JANE DOES,
1-12 and ABC CORPORATIONS 1-7,
Defendants.
___________________________________/
ORDER
This matter comes before the Court upon Hasbro, Inc.’s Dispositive Motion to Dismiss
Plaintiff’s Amended Complaint (Doc. 22), and Plaintiff’s response thereto (Doc. 28). In the
motion, Hasbro, Inc. (“Hasbro”) asserts several bases on which the Amended Complaint should
be dismissed, including that this Court lacks personal jurisdiction over Hasbro. Plaintiff responds
that jurisdiction is conferred by the venue provision of the Employee Retirement Income Security
Program, 29 U.S.C. § 502(e) (“ERISA”). The Court, having considered the motion and being fully
advised in the premises, will grant the Motion to Dismiss.
I.

BACKGROUND 1
Plaintiff filed an Amended Complaint against Hasbro, John and Jane Does 1-12, and ABC

Corporations 1-7. Doc. 17. Plaintiff seeks to recover unpaid wages under the Fair Labor Standards
Act of 1938, 29 U.S.C. § 203 (“FLSA”), as well as residual and secondary market wages, and
delinquent pension contributions under ERISA. Id. ¶¶ 2-4.

1

The following statement of facts is derived from the Amended Complaint (Doc. 17), the
allegations of which the Court must accept as true in ruling on the instant Motion to Dismiss.
Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir. 1992); Quality Foods de Centro Am., S.A. v.
Latin Am. Agribusiness Dev. Corp. S.A., 711 F.2d 989, 994 (11th Cir. 1983).

Plaintiff is an American Composer and Songwriter, a Union Signatory Member-Musician
and Vocal Performer, and a Signatory Producer affiliated with the American Federation of
Musicians of the United States and Canada, the Screen Actors Guild, and the American Federation
of Television and Radio Artists. Id. ¶ 10. Plaintiff alleges that Hasbro acquired the exclusive
distribution rights to the Entertainment Properties embodying her Music and Masters, but has
failed to make requisite payments to her for the use of her work. Id. ¶¶ 31-36.
Plaintiff alleges that this Court has jurisdiction over Hasbro because it:
[M]aintains significant presence in Florida, i.e., Hasbro is staffed in Florida;
Hasbro’s Latin American base appears in Florida; Hasbro has customers in Florida
who purchase music and video products in Florida stores, and customers who
purchase those products from online stores that deliver the products to them in
Florida; Hasbro licenses its properties in Florida, such as for Full Sail University’s
JEM Music Convention Events, and the TRANSFORMERS (theme park)
Exhibition at Universal, Orlando, FL . . . AND
Defendant Hasbro is subject to the Florida Long-Arm Statute . . . . 2
Id. ¶ 9.
Hasbro moved to dismiss the Amended Complaint on several bases, including lack of
personal jurisdiction. Doc. 22. Hasbro contends that it is a nonresident over whom Florida does
not have general jurisdiction, and that the Amended Complaint does not allege facts sufficient to
show that Plaintiff’s causes of action arose from any act by Hasbro in Florida. Id. at 11-12.

2

Plaintiff cites to various sections of the Florida Long-Arm Statute including “(1)(a), (b), (f)1,
(f)2, and (2). Section 48.193—the Florida Long Arm Statute—does contain sections (1)(a), (1)(b),
and (2), but does not contain an (f)1 or (f)2. A prior version, which has not been in effect since
2014 contained (f)1 and (f)2, provided that specific jurisdiction existed over persons who “caus[ed]
injury to persons or property within [Florida] arising out of an act or omission by the defendant
outside this state, if, at or about the time of the injury, either: 1. [t]he defendant was engaged in
solicitation or service activities within this state; or 2. [p]roducts, materials, or things processed,
serviced, or manufactured by the defendant anywhere were used or consumed within this state in
the ordinary course of commerce, trade, or use.” § 48.193(1)(f), Fla. Stat. (2013). Plaintiff does
not explain how these out-of-date provisions would grant personal jurisdiction and, therefore, the
Court does not further address them.
2

Plaintiff responded that the Amended Complaint satisfies the minimum contacts
requirement and that Florida is proper under ERISA’s venue selection clause. Doc. 28 at 5-6.
Because the Court must resolve jurisdictional matters before addressing the merits of a
case, this Order is limited to resolution of whether personal jurisdiction has been sufficiently
alleged. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999) (recognizing that personal
jurisdiction is an essential element of jurisdiction and that a federal court is powerless to proceed
to adjudication in the absence of such jurisdiction).
II.

LEGAL STANDARD
Motions to dismiss for lack of personal jurisdiction are governed by Federal Rule of Civil

Procedure 12(b)(2).

A court must dismiss an action against a defendant over which it

lacks personal jurisdiction. Posner v. Essex Ins. Co., 178 F.3d 1209, 1214, n. 6 (11th Cir. 1999).
To withstand a motion to dismiss, a plaintiff must plead sufficient facts to establish a prima
facie case of jurisdiction over the non-resident defendant. Id. at 1214. The district court must
accept the facts alleged in the complaint as true, to the extent they are uncontroverted by the
defendant’s affidavits. Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990). If the defendant is
able to refute personal jurisdiction by sustaining its burden of challenging the plaintiff’s
allegations through affidavits or other competent evidence, the plaintiff must substantiate its
jurisdictional allegations through affidavits, testimony, or other evidence of its own. Future Tech.
Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir. 2000). Where the plaintiff’s
complaint and the defendant’s affidavits conflict, the district court must construe all reasonable
inferences in the plaintiff’s favor. Madara, 916 F.2d at 1514.
The question of whether personal jurisdiction exists over a non-resident defendant is
answered through a two-step analysis. Internet Sol. Corp. v. Marshall, 557 F.3d 1293, 1295 (11th

3

Cir. 2009). First, the court must determine whether the plaintiff has alleged sufficient facts to
subject the defendant to the forum state’s long-arm statute. Future Tech. Today, 218 F.3d at 1249.
Second, if the court determines that the forum state’s long-arm statute has been satisfied, the court
must then decide whether the exercise of jurisdiction comports with the Due Process Clause of the
Fourteenth Amendment of the United States Constitution. Id. The Due Process Clause is satisfied
if the defendant has “minimum contacts” with the forum state and “the exercise of . . . jurisdiction
over [the] defendant” does not “offend ‘traditional notions of fair play and substantial justice.’
” Id. (quoting Int’l Shoe v. Washington, 326 U.S. 310, 316 (1945)).
III.

DISCUSSION
Two types of personal jurisdiction exist: general and specific. Goodyear Dunlop Tires

Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).
“A court may assert general jurisdiction over foreign (sister-state or foreign-country)
corporations to hear any and all claims against them when their affiliations with the State are so
‘continuous and systematic’ as to render them essentially at home in the forum State.” Id. Thus,
for corporations, general jurisdiction exists in the equivalent of that corporation’s domicile—a
place where the corporation is fairly regarded as at home. Brown, 564 U.S. at 924. “The
‘paradigm’ forums in which a corporate defendant is ‘at home’ . . . are the corporation’s place of
incorporation and its principal place of business.” BNSF Ry. Co. v. Tyrell, 137 S. Ct. 1549, 1558
(2017) (quoting Daimler A.G. v. Bauman, 571 U.S. 117, 138 (2014)). Nonetheless, general
jurisdiction is not limited to such forums and may extend in exceptional cases to a forum where
the corporation’s operations are “so substantial and of such a nature as to render the corporation at
home in that state.” Id. (quoting Daimler, 134 S. Ct. at 761 n.1). Florida’s Long-Arm Statute
extends to the limits of personal jurisdiction imposed by the Due Process Clause of the Fourteenth

4

Amendment. Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201, 1204 (11th Cir. 2015) (citing
48.193(2), Fla. Stat. (extending jurisdiction to any “defendant who is engaged in substantial and
not isolated activity within this state, whether such activity is wholly interstate, intrastate, or
otherwise . . . .”)).
A court may exercise specific jurisdiction only where there is an “ ‘affiliation[n] between
the forum and the underlying controversy,’ principally, activity or an occurrence that takes place
in the forum State and is therefore subject to the State’s regulation.” Brown, 564 U.S. at 919
(quoting von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv.
L.Rev. 1121, 1136 (1966)). In other words, while general jurisdiction is an “all purpose” variety
of jurisdiction, “specific jurisdiction is confined to adjudication of ‘issues deriving from, or
connected with, the very controversy that establishes jurisdiction.’ ” Id. (quoting von Mehren &
Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv. L.Rev. 1121, 1136 (1966)).
“Federal courts ordinarily follow state law in determining the bounds of their jurisdiction
over persons.” Walden v. Fiore, 571 U.S. 277, 283 (2014) (quoting Daimler, 571 U.S. at 125).
The Eleventh Circuit has previously described the application of specific and general jurisdiction
over a nonresident under Florida’s Long-Arm statute:
A [nonresident] defendant can be subject to personal jurisdiction under Florida's
long-arm statute in two ways: first, section 48.193(1)(a) lists acts that subject a
defendant to specific personal jurisdiction—that is, jurisdiction over suits that arise
out of or relate to a defendant's contacts with Florida, Fla. Stat. § 48.193(1)(a); and
second, section
48.193(2) provides
that
Florida
courts
may
exercise general personal jurisdiction—that is, jurisdiction over any claims against
a defendant, whether or not they involve the defendant's activities in Florida—if
the defendant engages in “substantial and not isolated activity” in Florida, id. §
48.193(2).
Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201, 1203-04 (11th Cir. 2015).

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A.

General Jurisdiction

Plaintiff cites to section 48.193(2) of the Florida Statutes, the statutory provision for
general jurisdiction, as a basis for jurisdiction. Doc. 17 ¶ 9. Hasbro, which is incorporated and
has its principal place of business in Rhode Island, is a nonresident. Doc. 17 ¶¶ 15, 21; Doc. 22 at
11. Thus, Hasbro’s “home” is in Rhode Island. Absent exceptional circumstances that show
Hasbro is also at home in Florida, courts in Florida, including this Court, do not have general
jurisdiction to adjudicate claims over Hasbro.
Plaintiff alleges that Hasbro “maintains significant presence” in Florida, including
employing staff in Florida, having a Latin American base that appears in Florida, having customers
in Florida who purchase products in Florida stores, having products purchased online delivered to
Florida, and licensing properties in Florida. Doc. 17 ¶ 9.
Courts have previously held that having employees and registering to do business in Florida
are not sufficient circumstances to render a corporation at home in Florida for purposes of general
jurisdiction. Hinkle v. Continental Motors, Inc., 268 F. Supp. 3d 1312, 1327 (M.D. Fla. 2017).
Courts have also held that general jurisdiction is not conferred on a corporation incorporated and
with their principal place of business outside the state, even where the corporation had distribution
agreements with dealers based in Florida, implemented marketing efforts in Florida, and attended
trade shows in Florida. Caramouche, 789 F.3d at 1205. Similarly, general jurisdiction has been
found to be lacking where a company did business in Florida by maintaining branches and ATM
locations and maintaining an agent in Florida to accept service of process. Lee v. Branch Banking
& Tr. Co., No. 18-21876-Civ-Scola, 2018 WL 5633995, at *3 (S.D. Fla. Oct. 31, 2018). In short,
a high bar exists to make a foreign corporation at home in Florida.

6

Based on the allegations of the Amended Complaint, Plaintiff has not made a prima facie
showing that general jurisdiction exists over Hasbro. The allegations do not demonstrate that this
is an exceptional case where Hasbro is essentially at home in a state where it is not incorporated
and does not have its principal place of business.
B.

Specific Jurisdiction

Plaintiff also cites to section 48.193(1)(a) of the Florida Statutes as a basis for jurisdiction.
Doc. 17 ¶ 9. This provision of the Florida Long-Arm Statute gives the Court jurisdiction over a
party who either directly or through an agent operates, conducts, engages in, or carries on a
business or business venture in Florida, or has an office or agency within the state. If this
requirement is satisfied, this subsection confers “specific” personal jurisdiction for any cause of
action “arising from” the activities within the state. Although the term “arising from” is broad,
under Florida law there must nevertheless be some “ ‘direct affiliation,’ ‘nexus,’ or ‘substantial
connection’ ” between the cause of action and the activities within the state, Citicorp Ins. Brokers
(Marine) Ltd. v. J.R. Charman, 635 So. 2d 79, 81 (Fla. 1st DCA 1994). This nexus requirement
is often described as “connexity,” and must be met before specific jurisdiction will attach under
this subsection. Bloom v. A.H. Pond Co., Inc., 519 F. Supp. 1162, 1168 (S.D. Fla. 1981).
Regardless of whether Plaintiff has met the first requirement of showing that Hasbro
operates, conducts, engages in, or carries on a business or business venture in Florida, Plaintiff has
not met the second requirement of showing connexity. This action arises out of Hasbro’s alleged
failure to remit various payments for work created by Plaintiff. See generally Doc. 17. The
Amended Complaint contains no allegations that tie Hasbro’s alleged failure to Florida. The
allegations regarding Hasbro’s activities in Florida all involve general activities without any

7

specific connection to Plaintiff’s causes of action. Id. ¶ 9. Accordingly, Plaintiff fails to make a
prima facie showing of the required connexity for this Court to exercise jurisdiction over Hasbro.
C.

ERISA

Plaintiff cites to ERISA’s venue provision as a basis for jurisdiction in her response to the
Motion to Dismiss. Doc. 28 at 5-6. This provision provides that:
Where an action under this subchapter is brought in a district court of the United
States, it may be brought in the district where the plan is administered, where the
breach took place, or where a defendant resides or may be found, and process may
be served in any other district where a defendant resides or may be found.
29 U.S.C. § 1132(e)(2). Additionally, ERISA provides for nationwide service of process. Id.
“Where a defendant has been validly served pursuant to a federal statute’s nationwide
service of process provision, a district court has personal jurisdiction over the defendant so long
as jurisdiction comports with the Fifth Amendment.” Trs. Of the Plumbers & Pipefitters Pension
Fund v. Plumbing Servs., Inc., 791 F.3d 436, 443 (4th Cir. 2015); see also Presser v. Union Sec.
Ins. Co., No. 17-cv-61184-BLOOM/Valle, 2017 WL 4476333, at *2 (S.D. Fla. Oct. 6, 2017)
(citing Republic of Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 946 (11th Cir.
1997)). Under a Fifth Amendment analysis, “a defendant’s contacts with the forum state play no
magical role . . . .” BCCI Holdings, 119 F.3d at 946. “In order to evaluate whether the Fifth
Amendment requirements of fairness and reasonableness have been satisfied, courts should
balance the burdens imposed on the individual defendant against the federal interest involved in
the litigation.” Id. “As in other due process inquiries, the balancing seeks to determine if the
infringement on individual liberty has been justified sufficiently by reference to important
governmental interests.” Id.
Hasbro contends that ERISA’s venue provision is not applicable here because Plaintiff’s
ERISA claims are not properly asserted against it. Doc. 22 at 10 n.8. Plaintiff cites to three
8

provisions of ERISA: section 502, which governs civil enforcement and provides a private right
of action for a plan participant or beneficiary; section 510, which relates to an unlawful interference
with protected rights under an employee benefit plan; and section 515, which relates to delinquent
plan payments. Hasbro argues that none of these claims are properly asserted against it, and
therefore do not provide a basis for jurisdiction, because: (1) Plaintiff does not specify the ERISA
plans or terms pursuant to which she seeks to recover benefits; (2) ERISA claims for unpaid
pension benefits under ERISA section 502 may be asserted only against the party that controls
administration of the plan, which is not Hasbro; (3) Plaintiff has not alleged an adverse
employment action to support her claim under ERISA section 510; (4) Plaintiff does not have
standing to bring a claim for delinquent contributions under 29 U.S.C. § 1145 because such claims
may be brought only by plan fiduciaries; and (5) Plaintiff’s ERISA claims are barred by the
doctrine of laches. Id. at 4-9.
Plaintiff claims she is entitled to payment of delinquent pension contributions pursuant to
ERISA section 502(a)(3). Doc. 17 ¶ 4. The Eleventh Circuit has explained that 29 U.S.C. §
1132(a)(1)(b) 3—the section of ERISA that allows a participant or beneficiary to file a civil action
to recover benefits due to him under the terms of his or her plan, enforce his or her rights under
the terms of the plan, or clarify his or her rights to future benefits under the terms of the plan—
“confers a right to sue the plan administrator for recovery of benefits.” Hamilton v. Allen-Bradley
Co., Inc., 244 F.3d 819, 824 (11th Cir. 2001). Plaintiff did not allege in the Amended Complaint
that Hasbro was the administrator of a plan. Thus, Plaintiff has not stated an ERISA claim against
Hasbro under this section and it cannot provide a basis for personal jurisdiction under ERISA’s
nationwide service of process provision.

3

ERISA section 502(a) is located at 29 U.S.C. § 1132(a).
9

Second, Plaintiff cites to ERISA section 510. Doc. 17 ¶ 4. Under this provision, it is
“unlawful for any person to discharge, fine suspend, expel, discipline, or discriminate against a
participant or beneficiary for exercising any right to which he is entitled under the provisions of
an employee benefit plan . . . . or for the purpose of interfering with the attainment of any right to
which such participant may become entitled under the plan . . . .” 29 U.S.C. § 1140. “In the
context of a § 510 claim alleging unlawful discharge, a plaintiff may establish a prima facie case
of discrimination by showing (1) that he is entitled to ERISA’s protection, (2) was qualified for
the position, and (3) was discharged under circumstances that give rise to an inference of
discrimination.” Olson v. Dex Imaging, Inc., 63 F. Supp. 3d 1353, 1358 (M.D. Fla. 2014) (quoting
Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1223 (11th Cir. 1993)). Plaintiff has not alleged that
an adverse employment action occurred, that the adverse employment action was regarding a
position for which she was qualified, or that such adverse employment action occurred under
circumstances that would give rise to an inference of discrimination. Accordingly, she has not
stated a claim under ERISA section 510 so as to render ERISA’s nationwide service of process
provision applicable.
Third, Plaintiff cites to ERISA section 515. Doc. 17 ¶ 2 n.3. This portion of ERISA
concerns delinquent contributions and provides that “[e]very employer who is obligated to make
contributions to a multiemployer plan . . . shall . . . make such contributions in accordance with
the terms and conditions of such plan or such agreement.” 29 U.S.C. § 1145. However, pursuant
to section 502(g), an action to enforce section 1145 and obtain an award for unpaid contributions
and interest must be brought by a fiduciary for or on behalf of the plan. 29 U.S.C. § 1132(g); see
also Moore v. Am. Fed’n of Television & Radio Artists, 216 F.3d 1236, 1245 (11th Cir. 2000).
Because of this, only fiduciaries have standing to sue on behalf of a plan for delinquent

10

contributions. Id. at 1246. Beneficiaries do not have standing to bring suit on behalf of the plan
for delinquent contribution. Id. Plaintiff, therefore, does not have standing to file a claim under
ERISA section 515, and this cannot provide a basis for jurisdiction to be conferred under ERISA’s
nationwide service of process provision.
Plaintiff does not state any valid claim under ERISA against Hasbro. Because of this,
ERISA’s nationwide service of process provision is inapplicable and cannot serve as a basis for an
alternate personal jurisdiction analysis under the Fifth Amendment in lieu of the Fourteenth
Amendment. Accordingly, it is
ORDERED:
1.

Hasbro, Inc.’s Dispositive Motion to Dismiss Plaintiff’s Amended Complaint (Doc.

22) is GRANTED because Plaintiff did not allege facts sufficient to establish a prima facie case
of personal jurisdiction over Hasbro.
2.

Given Plaintiff’s pro se status, the Court will give Plaintiff one final opportunity to

amend her complaint. 4 Plaintiff shall have FOURTEEN (14) DAYS from the date of this Order
to file a Second Amended Complaint, which cures the deficiencies addressed in this Order. Failure
to file a Second Amended Complaint within the time provided will result in dismissal of this action
without further notice.
DONE AND ORDERED in Tampa, Florida on May 22, 2019.

Copies to:
Counsel of Record and Unrepresented Parties, if any
4

Although Plaintiff filed an amended complaint on September 17, 2018 (Doc. 17), she did so
without the benefit of an Order from the Court addressing Hasbro’s first motion to dismiss.
11