Gregory et al v. EBF & Associates, L.P.

Filing 30

REPORT AND RECOMMENDATIONS re 8 MOTION to Dismiss 4 Amended Complaint for Lack of Personal Jurisdiction and Memorandum of Law in Support Thereof filed by EBF & Associates, L.P. Recommending the Motion to Dismiss Complaint for Lack of Personal Jurisdiction be GRANTED. Objections to R&R due by 11/17/2008. Signed by Magistrate Judge Stephen T. Brown on 10/28/2007. (dt)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA Miami Division Case Number: 08-608 14-CV-MARTINEZBROWN CHERYL GREGORY, PHILLIP LUCERO, JAMES J. PEREZ, PAUL S. ROSENKRANZ, DAVID NEFF and MARY J. HEBIG, Plaintiffs, VS. EBF & ASSOCIATES, L.P., a Delaware Limited Partnership, et al., Defendants. REPORT AND RECOMMENDATION This matter is before this Court on Defendant EBF & Associates, L.P.'s Motion to Dismiss Complaint for Lack of Personal Jurisdiction (D.E. 8). The Court has considered the motion, the response, the reply, the notice of supplemental authority and all pertinent materials in the file. Facts Plaintiffs have filed a single count Amended Complaint which alleges a violation of the Worker Adjustment and Retraining Notification Act, 29 U.S.C. Act").

55 2 101-2109, et seq., ("WARN

'
The Amended Complaint alleges, inter alia, the following:

'On July 28,2008, Plaintiffs filed a Motion for Leave to File Second Amended Complaint which seeks to add class allegations. That motion remains pending.

16. Defendant, EBF & Associates, L.P. ("EBF") is a Delaware Limited Partnership, it shares operating offices with Merced Partners, L.P., ("MERCED") in Minnetonka, Minnesota; MERCED is the Managing General Partner of Omega Air Holdings, LLC, d/b/a Focus Air. ("FOCUS"). 17. Defendant, EBF, owns and at all material times actively controlled FOCUS, and hence, EBF has affiliated corporate liability, as an "employer," under the WARN Act; it has a statutory corporate affiliation, with a business enterprise, FOCUS, ... 18. Defendant, EBF, owns and actively controls FOCUS; and hence, EBF has affiliated corporate liability, as a "joint employer," under the WARN Act; it has a statutory corporate affiliation, with a business enterprise, FOCUS ... 19. Defendant Omega Air Holdings, L.L.C., d/b/a Focus Air ("OMEGA," or "FOCUS"), conducts its business operations as a cargo airline, through using the business name, "Focus Air," and OMEGA is an "employer," under the WARN ACT, a business enterprise that employs either 100 or more employees, excluding part time employees, or 100 or more employees, who in the aggregate, work at least 4,000 hours per week, exclusive of overtime. [footnote omitted]. 20. A corporate representative of EBF, David Erickson ("ERICKSON"), acting in the position of Portfolio Manager, has been recently responsible for selling off all of the assets of FOCUS, in effect, liquidating that entity, to the highest possible bidder. Am. Complt. 77 16-20. Plaintiffs further allege that EBF, "doing business as the affiliated entity," FOCUS, violated the WARN Act by failing to give FOCUS employees in Fort Lauderdale adequate notice of an impending mass layoff. Am. Complt. 77 2 1-27. Discussion In this case, where federal jurisdiction is based on the alleged violation of a federal statute that is "silent regarding service ofprocess," (i.e. the WARN statute), the Court follows Fed.R.Civ.P. 4(e), which advises the Court to look to the state long-arm statute to determine the existence of personal jurisdiction. Sculptchair. Inc. v. Centurv Arts. Ltd., 94 F.3d 623,626-27 (1 lthCir. 1996). Florida's long arm statute is to be "strictly construed."

a.at 627.

If jurisdiction is proper under the state long arm statute, the Court must then determine whether the exercise of jurisdiction over the defendant would violation the Due Process Clause of the Fourteenth Amendment, "which requires that the defendant have minimum contacts with the forum state and that the exercise of jurisdiction not offend 'traditional notions of fair play and substantial justice."' Sloss Industries C o p . v. Eurisol, 488 F.3d 922,925 (1 lthCir. 2007) (quoting Sculptchair, 94 F.3d at 626). Plaintiffs have the initial burden of establishing "aprima facie case of personal jurisdiction Cir. over a nonresident defendant." Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1268-69 (1 lkh 2002). Once that is established, if a defendant challenges personal jurisdiction through affidavits or testimony, the burden shifts back to the Plaintiff to prove jurisdictio