EDGAR CAICEDO et al v. FOOD OF LIFE EXPERIENCE, INC
Filing
58
ORDER denying 30 Defendant's Motion to Dismiss Plaintiff's First Amended Complaint; denying 33 Defendant's Motion to Quash Service of Process; denying 51 Plaintiffs' Motion to Strike Portions of the Defend ant's Reply Memorandum and Affidavit of Nathan Coupal ; denying as moot 52 Plaintiffs' Motion For Extension of Time to Serve Defendant Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure; denying 57 Defendant's Motion to Dismiss Plaintiffs' Complaint With Prejudice for Failure to Perfect Service on Defendant. Signed by MAGISTRATE JUDGE GARY R JONES on 07/02/14. (grj)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
EDGAR CAICEDO as Administrator
of the ESTATE OF JOSE CAICEDO and
CHRISTINA CARTER as Administrator
of the ESTATE OF TIMOTHY CARTER
Plaintiffs,
v.
Case No. 1:13-cv-00258-GRJ
FOOD FOR LIFE EXPERIENCE, INC. d/b/a
KRISHNA KITCHEN,
Defendant.
______________________________________,
ORDER
Pending before the Court are: (1) Defendant’s Motion to Dismiss Plaintiff’s First
Amended Complaint (Doc. 30); (2) Defendant’s Motion to Quash Service of Process Or
In The Alternative Supplemental Argument to Motion to Dismiss For Insufficient Service
of Process (Doc. 33); (3) Plaintiffs’ Motion for Extension of Time to Serve Defendant
Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure (Doc. 52); (4) Plaintiffs’
Motion to Strike Portions of the Defendant’s Reply Memorandum and Affidavit of
Nathan Coupal (Doc. 51); and (5) Defendant’s Motion to Dismiss Plaintiff’s Complaint
With Prejudice For Failure to Perfect Service on Defendant Pursuant to 12(b)(5). (Doc.
57.) The parties have conducted limited discovery, Plaintiffs have filed a response to
the motions to dismiss (Docs. 46) and with the Court’s permission Defendant has filed a
reply. (Doc. 50.) The motions are, therefore, ripe for review. For the reasons discussed
below, Defendant’s Motion to Dismiss and Motion to Quash are due to be denied,
Plaintiffs’ Motion to Strike is due to be denied, Plaintiffs’ Motion for Extension of Time to
Serve Defendant is due to be denied as moot and Defendant’s Motion to Dismiss
Plaintiff’s Complaint With Prejudice For Failure to Perfect Service on Defendant is due
to be denied.
I. BACKGROUND
This case was initiated by the estates of Jose Caicedo and Timothy Carter,
passengers in a car driven by Elisha Drury. The matter is a wrongful death claim
resulting from an automobile collision on January 31, 2012, in which all three occupants
of the car died. Plaintiffs allege that Drury was acting within the course and scope of his
agency with Defendant at the time of the crash, and that Drury negligently drove the
vehicle into the path of a tractor-trailer, causing the collision. (Doc. 24.)
The initial Complaint was filed in the Circuit Court for the Eighth Judicial Circuit in
and for Alachua County, Florida, (Doc. 1, Exh. 1), but was removed to this Court on
December 30, 2013, based on diversity of citizenship. (Doc. 1.) Plaintiffs filed their First
Amended Complaint on February 5, 2014. (Doc. 24.) On February 18, 2014 Defendant
filed a Motion to Dismiss contending that the Amended Complaint should be dismissed
for insufficiency of service of process, lack of personal jurisdiction and failure to state a
cause of action upon which relief may be granted. (Doc. 30.) Defendant also filed a
motion to quash service of process related to the Notice of Lawsuit and Request to
Waive Service of a Summons form sent to Defendant’s counsel. (Doc. 33.)
Following Defendant’ s Motion for Protective Order, (Doc. 36) and Plaintiff’s
Opposition to Defendant’s Motion for Protective Order (Doc. 38) the court authorized
limited discovery on the issues of personal jurisdiction and sufficiency of process.
(Docs. 39,40.) On April 25, 2014 Plaintiffs filed their Response to Defendant’s Motion
2
to Dismiss, alleging that they had successfully served Defendant, that this Court has
personal jurisdiction over the case, and that the venue is proper. (Doc. 46.)
II. DISCUSSION
A. Rule 12 (b)(5) Motion to Dismiss for Insufficient Service of Process
Following removal to federal court, Plaintiffs attempted service of process
several times. In February 2014, after Defendant filed its motion to dismiss, Plaintiffs
attempted to serve Defendant at its registered office address and at the addresses of
its officers, as listed on the Pennsylvania Department of State’s Business Entity Filing
History website. (Doc. 50-1) The summons was returned unserved, as there was not
an answer at any of the addresses. (Doc. 41.)
During Plaintiffs’ deposition of James Rowlands – who was designated by
Defendant as its representative pursuant to Federal Rule of Civil Procedure 30(b)(6) –
Rowlands identified himself as Defendant’s secretary and treasurer and Nathan Coupal
as Defendant’s President. Following the deposition, on April 19, 2014, Plaintiffs served
Coupal in Maryland and on April 25, 2014 Plaintiffs served Rowlands in Florida. (Docs.
46-2 and 47.)
Defendant challenges the sufficiency of service pursuant to Rule 12(b)(5) of the
Federal Rules of Civil Procedure. Once the sufficiency of service is brought into
question, Plaintiffs have the burden of proving proper service of process. Banco Latino,
S.A.C.A. v. Gomez Lopez, 53 F. Supp.2d 1273, 1277 (S.D. Fla.1999). If the Plaintiffs
can establish that service was proper, the burden shifts to the Defendant to “bring
strong and convincing evidence of insufficient process.” Hollander v. Wolf, No.
09–80587–CIV, 2009 WL 3336012, at *3 (S.D. Fla.2009); see O'Brien v. R.J. O'Brien
3
Associates, Inc., 998 F.2d 1394, 1398 (7th Cir.1993). “The Court may look to affidavits,
depositions, and oral testimony to resolve disputed questions of fact.” Id., at 3.
Under 28 U.S.C. § 1448, if a case is removed from state court to a district court
and “one or more of the defendants has not been served with process or in which the
service has not be perfected prior to removal, or in which process served proves to be
defective, such process may be completed or new process issued in the same manner
as in cases originally filed in such district court.” Therefore, the court may determine
the validity of Plaintiffs’ service according to Rule 4(h), Fed. R. Civ. P.
Rule 4(h) provides that a corporation may be served either in the manner
prescribed for an individual under Rule 4(e) or “by delivering a copy of the summons
and of the complaint to an officer, a managing or general agent, or any other agent
authorized by appointment or by law to receive service of process.” Service of process
on an individual under 4(e) is governed by the state law of either the state where the
district court is located or where service is made. Consequently, the rule provides for
three means of service: (1) pursuant to 4(e) in accordance with the law of the state
where the district court is located; (2) pursuant to 4(e) in accordance with the law of the
state where service is made; or (3) pursuant to 4(h)(1)(B), by serving an officer,
managing or general agent or other authorized agent of the corporation.
Defendant’s argument in its Motion to Dismiss, focuses entirely upon the
sufficiency of service of process prior to removal to federal court, and relies exclusively
upon Fla. Stat. § 48.081 and Florida law as support for its argument that service was
4
defective.1 Apparently recognizing that the original November 25, 2014 service on
Scott Manley was insufficient, Plaintiffs instead focus upon service upon Nathan
Coupal, effected after removal. According to Plaintiffs, Coupal is the President of Food
for Life Experience and therefore service is proper either under Florida law or pursuant
to Rule 4(h)(1)(B). In addition to serving Coupal, Plaintiffs also served James
Rowlands (Doc. 47), apparently as a back-up in the event service on Coupal was
defective.
Defendant in its reply challenges service on both Coupal and on Rowlands
arguing that because neither Coupal nor Rowlands are listed as officers on the
Pennsylvania Department of State Business Entity Filing History, service on either of
them as officers is defective. In addition, Defendant points to a May 3, 2014 affidavit of
Coupal ( a copy of which is attached to Defendant’s reply) in which Coupal states that
he is not the President of Food for Life Experience and that “James Rowlands is not
officially appointed as a secretary or treasurer for Food for Life Experience or a member
of the board of directors as no proper designation or protocol has taken place as of this
date, and no filings have been made.” (Doc. 50, Ex. B. emphasis added.)
There are two fundamental problems with Defendant’s arguments. First – and
most importantly – Defendant produced James Rowlands as its 30(b)(6) representative
for deposition. As the 30(b)(6) representative the testimony of the witness is binding on
the corporation and serves as a party admission. Mr. Rowlands as the representative
for the Defendant corporation testified under oath that for the past three years he has
1
On Novem ber 25, 2014 Plaintiffs served Scott Manley, an individual who received Defendant’s
m ail at his hom e in Pittsburgh, PA.
5
been the Treasurer/Secretary for Food For Life Experience. Further, Mr. Rowlands
testified that Nathan Coupal has been the President of Food For Life since 2014 and
that both he and Mr. Coupal are the current directors of Food for Life. Mr. Rowlands
readily admitted that the corporation had not informed the State of Pennsylvania that
he, Mr. Coupal and another individual are the current directors of Food for Life. The
deposition was taken on April 3, 2014. In reliance upon the sworn testimony of
Defendant’s own corporate representative, Plaintiffs served James Rowlands on April
14, 2014 at an address in Alachua, Florida and served Nathan Coupal on April 19, 2014
at an address in Silver Springs, Maryland. Thus, Plaintiffs in reliance upon the sworn
position of the Defendant corporation served not one, but two, directors and officers of
the corporation. As such, service of process is sufficient under Rule 4(h)(1)(B) because
service was made on an officer, managing or general agent or other authorized agent of
the corporation. Under normal circumstances that would end the inquiry.
Defendant, however, says that service was defective because neither Rowlands
nor Coupal are currently listed as officers on the website for the Pennsylvania
Department of State Business Entity Filing History. Reference to the Pennsylvania
Department of State website is insufficient to rebut the sworn testimony of Defendant’s
own corporate representative. Mr. Rowlands readily admitted at his deposition that
nobody had informed the Pennsylvania Department of State of the change in directors.
This statement is confirmed by examining the listing from the website of the
Pennsylvania Department of State, filed by Defendant, which notably still lists Elisha
Drury as a director. Elisha Drury of course is one of the deceased occupants of the
vehicle involved in the crash in this case and has been dead since January 2012. The
6
listing, filed by Defendant, therefore demonstrates nothing more than the fact that the
Defendant has not updated its listing since sometime before January 2012.
In addition, the listing from the website only lists director’s names and one
officer, a secretary. There is no listing for the President or Treasurer and thus nothing in
this listing contradicts the testimony of the corporate representative that he is the
Treasurer and that Mr. Coupal is the President. And because the listing continues to list
at least one director, who has been deceased since 2012, the listing does nothing to
contradict Mr. Rowlands testimony that he and Mr. Coupal became directors in 2014.
As a last ditch effort to challenge service on Rowlands and Coupal, Defendant
has filed an affidavit of Mr. Coupal. Mr. Coupal denies that he is the President or an
officer of Food for Life. He further states that Mr. Rowlands is not “officially appointed
as a secretary or treasurer for Food For Life Experience or a member of the board of
directors as no proper designation or protocol has taken place as of this date, and no
filings have been made.” Liberally construed the most the affidavit demonstrates is that
Mr. Coupal is not the President or an officer of Food for Life. The affidavit is insufficient,
however, to rebut the sworn position of the Defendant that Mr. Rowlands is an officer
and director of Food for Life.
In addition to the fact that service of process was effected on two individuals –
who the Defendant corporation represented in a 30(b)(6) deposition were officers and
directors of the corporation (even though the listing was not formally changed) – the
Defendant did not have any individuals located at its registered address upon whom
service of process could be made. A corporation cannot avoid service of process by
failing to formally change the public listing of its officers, failing to have any
7
representatives present during required business hours upon whom service of process
can be made, and then after providing the names of the officers and directors in a Rule
30(b)(6) deposition, challenge the sufficiency of service of process on the grounds that
service was not made on the outdated (and deceased) directors listed on the public
website. To accept Defendant’s argument would ignore the purpose and effect of a
Rule 30(b)(6) deposition. In a Rule 30(b)(6) deposition the person designated by the
corporation “presents the corporation’s ‘position’ on the topic [and] .... testifies on behalf
of the corporation and holds it accountable accordingly.” Hyde v Stanley Tools, 107 F.
Supp. 2d 992, 993 (E.D. La. 2000).
Moreover, to accept Defendant’s argument essentially would insulate a
corporation from ever being served validly with process. All that a corporation would
have to do to avoid ever being served is not to change the listing of officers and
directors and insure that there was never an individual located at the official corporate
address. That is essentially what the Defendant has done in this case. It follows that in
the apparent absence of any other officer or agent, Plaintiffs did not have any option
other than to serve Rowlands and Coupal. See, Valmont Industries, Inc. v. Susie’s
Structures, Inc., no. 5:08-cv-81-Oc-10GRJ, 2009 WL 111465, at *3 (M.D. Fla. Jan. 14,
2009).
Accordingly, for these reasons, the Court concludes that at a minimum, Plaintiffs’
service on Defendant, through Rowlands, was perfected in accordance with Rule
8
4(h)(1(B) and, therefore, Defendant’s motion to dismiss for insufficiency of service of
process is denied.2
B. Rule 12(b)(4) Motion to Dismiss for Insufficient Process
Defendant also argues in its Reply that the returns of service for Rowlands and
Coupal are defective because the returns of service do not state the capacity in which
Rowlands and Coupal were served. The returns of service show that although each
was addressed to Food For Life Experience, Inc d/b/a Krishna Kitchen, the individuals
were listed as recipients, without listing a specific relationship to Defendant.
Defendant’s argument fails because federal, and not Florida law applies, and
under federal law defects in proofs of service do not effect the validity of service.
Pursuant to Rule 4(l)(3) “[F]ailure to prove service does not affect the validity of
service.” Thus, this provision prevents a defendant who has been properly served from
attacking the validity of service on the technical ground of the process server’s failure to
make return in timely fashion or because the return is deficient. See. 4B Charles Alan
Wright & Arthur R. Miller, Federal Practice & Procedure § 1130 (3d ed. 2010); Colony
Insurance Co. v. Ropers of Hattiesburg, LLC., no. 2:11-cv3KS-MTP, 2011 WL
1226095, at * 4-5 (S.D. Miss. March 29, 2011)(denying motion to dismiss because of
lack of prejudice where two proofs of service contained misnomers).
2
Because Plaintiffs have not advanced the argum ent that service of process was effected through
m ailing to Defendant’s counsel of the Notice of Lawsuit and Request to W aive Service of a Sum m ons,
Defendant’s Motion to Quash Service of Process (Doc. 33) is due be denied. Further, because the Court
concludes that Plaintiffs perfected service of process on Defendant, Plaintiffs’ Motion for Extension of Tim e
to Serve Defendant Pursuant to Rule 4(m ) of the Federal Rules of Civil Procedure (Doc. 52) is due to be
denied as m oot and Defendant’s recently filed Motion to Dism iss Plaintiff’s Com plaint W ith Prejudice For
Failure to Perfect Service on Defendant Pursuant to Rule 12(b)(5) (Doc. 57) is due to be denied.
9
While compliance with Rule 4 is required, insubstantial noncompliance with Rule
4 will not always require dismissal, particularly where, as here, the necessary parties
have received notice of the suit and they have not been prejudiced by the defect in
service. Sanderford v. Prudential Insurance Company of America, 902 F.2d 897, 901
(11th Cir.1990), see also McCreary v. Vaughan-Basset Furniture Co, Inc ,412 F. Supp.
2d 535 (M.D. N.C. 2005).
In this case Defendant has shown no evidence that it has been prejudiced by the
technical defect in service, and given that James Rowlands was named the Rule
30(b)(6) deponent for Defendant, it is unlikely that they did not receive notice of the suit.
Lastly, the Florida cases relied upon by Defendant, Sunseeker Intern. Ltd. v.
Devers, 50 So. 3d 715 (Fla. Dist. Ct. App. 2010) and Dade Erection Serv., Inc. v. Sims
Crane Serv., Inc., 379 So. 2d 423, 425 (Fla. Dist. Ct. App. 1980), provide no support for
quashing service. First, as discussed above, federal and not Florida law controls the
issue of whether the defects in the returns of service warrant dismissal. Secondly, both
Sunseeker and Dade Erection Services are completely inapposite to this case because
the courts there dealt with the issue of compliance with the requirements of Florida law
for serving a corporation. Neither case deals with the issue in this case of whether a
technical defect in the return of service under federal law mandates quashing service.
Accordingly, for these reasons, Defendant’s Rule 12(b)(4) motion to dismiss for
insufficient process is denied.
C. Rule 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction
Defendant also requests dismissal of the case on the grounds that the Court
lacks personal jurisdiction over the Defendant.
10
Plaintiffs initially must establish a prima facie case of personal jurisdiction over a
nonresident defendant. “A prima facie case is established if the plaintiffs present
sufficient evidence to defeat a motion for a directed verdict.” Cable/Home
Communication Corp. v. Network Prods., Inc. 902 F.2d 829, 855 (11th Cir. 1990)
(quoting Morris v. SSE, Inc., 843 F.2d 489, 492 (11th Cir. 1988)). The burden then
shifts to the defendant to file affidavits containing allegations that, if taken as true, show
that the defendant’s conduct does not make him or her amenable to service. Acquadro
v .Bergeron, 851 So.2d 665, 672 (Fla. 2003). Where a defendant submits such
affidavits, the burden traditionally shifts back to the plaintiff to produce evidence
supporting jurisdiction -- unless the affidavits contain only cursory assertions that the
defendant is not subject to jurisdiction. Meier ex rel. Meier v. Sun Intern. Hotels, Ltd.,
288 F.3d 1264, 1269 (11th Cir. 2002). Where the plaintiff’s complaint and supporting
evidence conflict with the defendant’s affidavits, the court must construe all reasonable
inferences in favor of the plaintiff. Id.
In determining whether the court has personal jurisdiction over a nonresident
defendant the court employs a two-part analysis. Horizon Aggressive Growth v.
Rothstein-Kass, 421 F.3d 1162, 1166 (11th Cir. 2005). First, the court must determine if
jurisdiction can be obtained over the defendants under Florida’s long-arm statute. Id. If
so, the court must then decide whether the nonresident defendants have sufficient
“minimum contacts” with Florida to satisfy the constitutional requirements under the Due
Process Clause of the Fourteenth Amendment so that maintenance of the suit “does
not offend ‘traditional notions of fair play and substantial justice.’” Id. Even if jurisdiction
11
is found under Florida’s long-arm statute, a separate review of the facts must be
undertaken by the court to determine if the constitutional test is met. Cable/Home
Communication, 902 F.2d at 856 (quoting Venetian Salami Co. V. Parthenais, 554
So.2d 499, 500 (Fla. 1989)).
1. Florida’s Long-Arm Statute
Because Florida law dictates the reach of the long-arm statute, this Court must
interpret it in the same way that the Florida Supreme Court would. Horizon Aggressive
Growth, 421 F.3d at 1167. Therefore, this Court must strictly construe the statute,
Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990). Additionally, Plaintiffs bear the
burden of proving the facts which make the long arm statute applicable to the
Defendants. Restorative Prods., Inc. v. Mmar Med. Group, Inc., No. 94-1920 CIV-T17A, 1995 U.S. Dist. LEXIS 18695, at *5 (M.D. Fla. Oct. 18, 1995); Bloom v. A. H. Pond
Co., Inc., 519 F. Supp. 1162, 1168 (S.D. Fla. 1981)
Florida’s long-arm statute provides for two types of personal jurisdiction: specific
jurisdiction under Fla. Stat. § 48.193(1), which is available when a party’s contacts with
the forum relate to the cause of action and general jurisdiction under § 48.193(2), Fla.
Stat., which is available when a party’s contacts are unrelated to the litigation, but
nonetheless are “continuous and systematic,” such as owning property, running a
business, or maintaining a bank account.
In this case, Plaintiffs allege that this Court has specific jurisdiction over
Defendant under §48.193(1)(a)(2), which allows for jurisdiction over a non-resident who
commits a tortious act within Florida. According to Plaintiffs, Defendant, through Drury,
12
its agent, committed a tortious act, wrongful death, within this state. (Doc. 24, ¶1.)3
Plaintiffs allege that at the time of the accident, Drury was traveling and soliciting
donations on behalf of Defendant, as its agent. (Doc. 24, ¶¶ 5-8.) Plaintiffs support this
allegation with the deposition of James Rowlands, who stated that at the time of the car
accident, with respect to Defendant, Drury was “doing everything. He was the main
person making everything happen.” Additionally he describes Drury’s actions on behalf
of Defendant4, and his deposition supports Plaintiffs’ allegation that, on the day of the
accident, Drury was returning from fund raising operations on behalf of Defendant. (Doc
46-1 pg. 5.)
Defendant attempts to rebut Plaintiffs personal jurisdiction argument with
allegations from an earlier affidavit of Rowlands. However, the affidavit does not
contradict any of the information provided by Plaintiffs. (Doc. 30-1). At best the affidavit
only provides information that would rebut an allegation of specific jurisdiction based
upon Fla Stat. § 48.193(1)(a)(1) -- the operation of a business venture in Florida.5 That
provision of the Florida long arm statute, however, is not the basis for jurisdiction
alleged by Plaintiffs.
3
Plaintiffs’ jurisdictional claim is based on Fla. Stat. § 48.193 (1)(a)(2), the com m ission of a tort in
Florida. Defendant’s argum ents concerning the Florida long arm statute focus prim arily on whether or not
Defendant operated a business in the state (Doc. 30, p. 10-11) described in § 48.196(1)(a)(1). Therefore,
Defendant’s reliance on Design-Build Concepts Inc. V. Jenkins Brick Company, 2008 W L 686150 (N.D.
Fla. 2008) is m isplaced.
4
In his deposition, Rowlands states that Drury, on behalf of Defendant, engaged in fund raising
and food distribution all over the country. According to Rowlands, in January 2012, Drury cam e to Florida to
raise funds at concerts in Miam i and Jacksonville. (Doc. 46-1 p. 5.)
5
In the affidavit, Rowlands states that Defendant is a Pennsylvania corporation, m aintains a prim ary
office in Pennsylvania, has only one em ployee, and does not own property, lease property, have em ployees,
file tax returns or have system atic business contacts in Florida.
13
With regard to the tortious act provision of the Florida long arm while Defendant
“vehemently denies” that Drury had agency status, Defendant fails to provide any
testimony or evidence supporting its denial. Further, according to Defendant, even if
Drury was acting as an agent of Food For Life Experience, he was acting outside of the
course and scope of his agency when the accident occurred. (Doc. 50.) The problem
with this argument is that, other than Defendant’s bare statement, Defendant has not
supplied any evidence rebutting Plaintiffs’ allegation that Drury was acting as an agent
or rebutting Rowland’s statement that Drury was in Florida fund raising for Defendant.6
In sum, Plaintiffs, in their amended complaint and in their response to the motion
to dismiss, have alleged facts demonstrating that Defendant, through its agent,
committed a tortious act in the state, and have established a prima facie case that the
conduct of Defendant, through Drury, falls within the ambit of Florida’s Long Arm
Statute §48.193(1)(a)(2).
2. Minimum Contacts to Satisfy Due Process
In addition to establishing that the claim in this case falls within Florida’s Long
Arm Statute, the court must determine if Defendant has sufficient minimum contacts
with the forum to satisfy the due process requirement of the Fourteenth Amendment of
the Constitution, so that the exercise of personal jurisdiction does not offend “traditional
notions of fair play and substantial justice.” Int’l Shoe Co v. Washington, 326 U.S. 310,
316 (1945).
6
W hether or not Drury was acting as an agent of Defendant, or whether his actions were within the
scope of that agency are factual m atters to be resolved in this case by the trier of fact. For jurisdictional
purposes, however, Plaintiff is only required to provide som e evidence to establish a prim a facie case.
14
In the Eleventh Circuit, courts use a three part test to determine whether there
are sufficient minimum contacts between Defendant and the jurisdiction. First, a plaintiff
must establish that the contacts are related to the plaintiff’s cause of action. Posner v.
Essex Ins. Co., 178 F.3d 1209, 1220 (11th Cir 1999). Second, the contacts must involve
some act by which the defendant purposefully avails itself of the privilege of conducting
activity in the jurisdiction. Id. Third, a defendant’s contacts should be such that
defendant reasonably should anticipate being haled into court. Id.
Turning to the first part of the test, the Plaintiffs have alleged that Defendant has
contacts with Florida related to the automobile accident in Florida. As evidenced by the
affidavit of Rowlands, Drury, as Defendant’s agent, traveled in Florida in order to raise
funds and distribute food. That travel within Florida, on behalf of Defendant, is directly
related to the wrongful death claim.
Second, the Plaintiffs have demonstrated actions by Defendant that suggest it
purposefully availed itself of the privilege of conducting activity in Florida. Plaintiffs have
provided evidence that Defendant, through its agent, identified and attended concerts in
both Jacksonville and Miami for the purpose of fund raising, and food and information
distribution. Additionally, Defendant, through its agent, used the roads in Florida to
travel to the concerts in the various cities in Florida in which Drury was conducting fund
raising for the Defendant.
Third, given Rowland’s testimony that Defendant sent its agent to raise funds
and drive throughout the state of Florida, Defendant cannot be surprised at being haled
15
into court here when the actions of the agent result in an accident and the death of
three people.
Defendant in its notice of supplemental authority, relies upon Marina Dodge, Inc.
v. Quinn, 134 So.3d 1103 (Fla. Dist. Ct. App. 2014) as support for its argument that the
Defendant does not have sufficient minimum contacts with Florida. Marina Dodge,
however, is different from this case. In Marina Dodge the court found that minimum
contacts had not been established in a negligence case involving an out of state car
dealer and a Florida resident. Notably, there, the tortious act occurred outside of the
state, and not in the state, and the defendant’s contacts were not related to the tortious
act. In contrast the claim in this case concerns the commission of a tort in this state by
an out of state defendant and, thus, because defendant committed the tort in Florida, its
contacts with the state are directly related to the lawsuit.
For all of these reasons, the Court finds that the exercise of personal jurisdiction
over Defendant does not violate the due process requirements of the Fourteenth
Amendment of the Constitution and that the exercise of personal jurisdiction does not
offend traditional notions of fair play and substantial justice. Accordingly, Defendant’s
Motion To Dismiss for Lack of Personal Jurisdiction is due to be denied.7
D. Rule 12(b)(3) Motion to Dismiss for Improper Venue
Defendant also argues that because the court does not have personal
jurisdiction over Defendant, pursuant to Rule 12(b)(3), the Court should dismiss the
case for improper venue. (Doc. 30, pp. 20-22.)
7
Because the Court has considered the argum ents in Defendant’s Reply Mem orandum , Plaintiff’s
Motion to Strike Portions of the Defendant’s Reply Mem orandum and Affidavit of Nathan Coupal (Doc. 51)
is denied.
16
Pursuant to 28 U.S.C. § 1391(b)(1), which governs venue, “a civil action may be
brought in a judicial district in which any defendant resides, if all the defendants are
residents of the State in which the district is located.” Section 1391(c)(2) states that for
venue purposes, corporations are deemed to reside in “any judicial district in which
such defendant is subject to the court’s personal jurisdiction with respect to the civil
action in question.” Accordingly, because Defendant is subject to the personal
jurisdiction in this district, the Defendant is considered a resident of this district for
venue purposes and, therefore, venue is appropriate. Defendant’s motion to dismiss for
improper venue, pursuant to Rule12(b)(3) therefore is due to be denied.
E.
Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim
Upon which Relief May Be Granted
Finally, Defendant alleges that Plaintiffs have failed to allege the existence of the
elements of an agency relationship between Elisha Drury and Defendant and,
therefore, the complaint should be dismissed pursuant to Rule 12(b)(6) for failing to
state a claim upon which relief may be granted.
When ruling on a motion to dismiss for failure to state a claim, the court must
view the complaint in the light most favorable to the plaintiff. And in reviewing the
complaint to determine whether it states a cause of action upon which relief may be
granted the court must also “1) eliminate any allegations in the complaint that are
merely legal conclusions... and 2) where there are well pleaded factual allegations,
‘assume their veracity and then determine whether they plausibly give rise to an
entitlement to relief.’” American Dental Ass’n v. Cigna Group, 650 F.3rd 1283, 1290
(11th Cir. 2010), citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct 1937, 1950 (2009). The
17
Supreme Court's formulation of the pleading specificity standard means that “stating
such a claim requires a complaint with enough factual matter (taken as true) to suggest”
the required element. Watts v. Florida Intern. University, 495 F.3d 1289 (11th Cir .2007),
citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, (2007).
Defendant urges the court to dismiss the complaint because in order to bring a
wrongful death suit against Defendant, Plaintiffs must show an agency relationship
between Drury and Defendant. Defendant says that the complaint lacks the elements
required to allege the existence of an agency relationship between Drury and
Defendant. (Doc. 30, p 22-23.) “Essential to the existence of an actual agency
relationship is (1) acknowledgment by the principal that the agent will act for him, (2) the
agent's acceptance of the undertaking, and (3) control by the principal over the actions
of the agent.” Goldschmidt v. Holman, 571 So.2d 422 (Fla.1990).
Viewing the facts alleged by Plaintiffs in the Amended Complaint, Plaintiffs
allege that Drury was a volunteer and officer of Defendant; he wore Food for Life
Experience identification while raising funds and distributing food; and Defendant had
the authority to control Drury’s movement and expenditures. (Doc. 24, ¶ 4.) These
facts, taken as true, and viewed in the light most favorable to the Plaintiff, support the
existence of the agency relationship between Defendant and Drury, and amount to
more than a mere recitation of the legal conclusion that Drury was Defendant’s agent.
While the facts alleged in the amended complaint may prove to be no more than a
suggestion of an agency relationship, at this stage in the proceedings those facts are
more than sufficient to allege a plausible claim that Drury was acting as the agent for
Defendant.
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Accordingly, the Court concludes that Plaintiffs’ First Amended Complaint
contains sufficient allegations to demonstrate an agency relationship between Drury
and Defendant and therefore sufficient facts to allege a wrongful death claim against
the Defendant. Defendant’s Rule 12 (b)(6) Motion to Dismiss for Failure to State a
Claim Upon Which Relief May be Granted is, therefore, due to be denied.
III. CONCLUSION
Accordingly, upon due consideration, and for the reasons discussed above, it is
ORDERED:
1.
Defendant’s Motion to Dismiss Plaintiff’s First Amended Complaint (Doc.
30) is DENIED.
2.
Defendant’s Motion to Quash Service of Process Or In The Alternative
Supplemental Argument to Motion to Dismiss For Insufficient Service of
Process (Doc. 33) is DENIED.
3.
Plaintiffs’ Motion for Extension of Time to Serve Defendant Pursuant to
Rule 4(m) of the Federal Rules of Civil Procedure (Doc. 52) is DENIED as
moot.
4.
Plaintiffs’ Motion to Strike Portions of the Defendant’s Reply
Memorandum and Affidavit of Nathan Coupal (Doc. 51) is DENIED.
5.
Defendant’s Motion to Dismiss Plaintiff’s Complaint With Prejudice For
Failure to Perfect Service on Defendant Pursuant to 12(b)(5) (Doc. 57) is
DENIED.
DONE AND ORDERED at Gainesville, Florida this 2nd day of July 2014.
s/Gary R. Jones
GARY R. JONES
United States Magistrate Judge
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