Easy Fly S.A.L. v. Blattner et al

Filing 114

ORDER OVERRULING 76 Recommendations of Magistrate Judge, GRANTING 37 Defendant Gayer's Motion to Quash, Alternatively Motion to Dismiss, QUASHING service as to Defendant Gayer, and DISMISSING Plaintiff's Complaint as to Defendant Gayer pursuant to Rules 12(b)(2) and 12(b)(4) of the Federal Rules of Civil Procedure. Signed by Judge Joan A. Lenard on 11/9/2010. (mhz)

Easy Fly S.A.L. v. Blattner et al

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U N IT E D STATES DISTRICT COURT S O U T H E R N DISTRICT OF FLORIDA C A S E NO. 10-60247-CIV-LENARD/TURNOFF E A S Y FLY S.A.L., a Lebanese com p an y , P l a in tif f , v. A V E N T U R A AVIATION, INC., a F lo r id a limited liability company, et a l., D e f e n d a n ts . ________________________________/ O R D E R OVERRULING RECOMMENDATIONS OF MAGISTRATE JUDGE (D .E . 76) AND GRANTING DEFENDANT GAYER'S MOTION TO QUASH, A L T E R N A T I V E L Y MOTION TO DISMISS (D.E. 37) T H I S CAUSE is before the Court on the Order and Recommendation of Magistrate J u d g e William C. Turnoff ("Order and Recommendation," D.E. 76), issued on May 26, 2010. O n June 9, 2010, Defendant Henry Gayer ("Gayer") filed objections to the Order and R e c o m m e n d a tio n ("Objections," D.E. 78). On June 15, 2010, the Court sua sponte directed G a ye r to file a memorandum of law in support of his Objections including any case law in s u p p o rt of his argument that the Court lacked personal jurisdiction over him. (See D.E. 81.) O n June 29, 2010, Gayer filed his memorandum of law in support of his Objections.1 (S e e D.E. 86.) On July 6, 2010, Plaintiff Easy Fly S.A.L. ("Easy Fly"), filed its response to

Gayer was originally provided until June 22, 2010, to file his memorandum of law. (See D.E. 81.) He subsequently requested and received an extension of time until June 29, 2010, to file his memorandum. (See D.E. 84, 85.)

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G a ye r's memorandum of law.

(See D.E. 88.)

Having considered the Order and

R e c o m m e n d a tio n , Objections, related pleadings, and the record, the Court finds as follows. I. B a c k gro u n d

O n approximately November 10, 2009, Easy Fly filed the instant action in state court. O n February 19, 2010, Defendants Aventura Aviation, LLC ("Aventura") and Allen Blattner (" B la ttn e r" ) removed the case to federal court. Easy Fly's complaint asserts various claims re la tin g to the failed purchase of a 2001 Bombardier model CL-600-2B19 aircraft. (See C o m p la in t, D.E. 12-1 at ¶ 12.) Easy Fly alleges that on or about July 30, 2008, Easy Fly and A v e n tu ra entered into an agreement whereby Easy Fly was to purchase the aircraft from A v e n tu ra for $11,000,000.2 (Id. at ¶¶ 14-16.) As part of that agreement, Easy Fly agreed to p ro v id e Aventura with a $250,000 deposit, refundable in the event the aircraft was not d e liv e re d . (Id. at ¶¶ 16-18.) Easy Fly alleges that on October 20, 2008, it sought further a ss u ra n c e s from Aventura that Aventura possessed the authority to sell the aircraft in q u e stio n . (Id. at ¶ 20.) Aventura assured Easy Fly that it possessed the authority to sell the a irc ra f t and that proof of such authority was forthcoming. (Id. at ¶ 21.) Despite this a ss u ra n c e , Aventura lacked the authority to sell the aircraft. (Id. at ¶¶ 22-23.) As a result, o n October 31, 2008, Easy Fly notified Aventura that it was cancelling the transaction and d e m a n d e d the return of its deposit. (Id. at ¶¶ 24-25.) Easy Fly renewed this demand on

Easy Fly's Complaint contains several scrivener's errors, particularly with regard to the dates of certain events. For example, although paragraph 14 of the Complaint alleges the agreement took place on July 30, 2009, that date is contradicted by the agreement attached as Exhibit A, as well as Easy Fly's subsequent description of events. 2

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F e b ru a ry 20, 2009. (Id. at ¶ 26.) Aventura refused to refund the deposit. Consequently, E a sy Fly filed its Complaint alleging: (1) breach of contract; (2) unjust enrichment; (3) c o n v e rs io n ; (4) constructive trust; (5) fraud; (6) fraud in the inducement; (7) fraudulent m isrep rese n tatio n ; (8) fraudulent conveyance; and (9) conspiracy, against Aventura, Gayer, a n d Blattner. The Complaint asserts that Gayer was the alter-ego of Aventura and a point of contact b e tw e e n Easy Fly and Aventura. (Id. at ¶¶ 6, 10.) With respect to Gayer, the Complaint a ss e r ts that he is subject to the jurisdiction of this Court pursuant to Florida Statutes §§ 4 8 .0 7 1 , 48.181, and 48.194. (Id. at ¶ 5.) F u r t h e r m o r e , th e C o m p l a i n t s t a t e s , " [ t ] h i s C o m p la in t arises from Defendants' business activities in Florida." (Id. at ¶ 7.) The C o m p la in t does not contain any other allegations relating to Gayer's connection to Florida o r any conduct that occurred in Florida. O n April 5, 2010, Gayer filed a motion to quash service, or alternatively, motion to d is m i s s for lack of personal jurisdiction. (See "Motion," D.E. 37.) Gayer's Motion seeks to quash service based on Easy Fly's alleged failure to comply with the mechanism for substituted service through Florida's Secretary of State pursuant to Florida Statutes §§ 48.161 a n d 48.181. Gayer contends that he is a resident of New York and has never personally been s e rv e d with the Complaint. Gayer also contends that he does not operate, conduct, engage in , or carry on a business in Florida and he did not appoint a public officer as his agent for s e rv ic e under Florida Statutes § 48.161. In support, he includes an affidavit wherein he states

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h e has "not operated, conducted, engaged in, or carried on a business in Florida at any time re le v a n t to Plaintiff's claims" and he does not do so currently. (See Gayer Affidavit, D.E. 4 9 -1 at ¶ 5.)3 The affidavit also states, "I am not an alter ego of Aventura Aviation, L.L.C. I made no representations to Plaintiff as alleged in the Complaint, and I committed none of th e wrongful acts alleged of me in the Complaint." (Id. ¶ 6.) Finally, the affidavit states that, " [ w ]h ile Aventura Aviation, L.L.C. was formed in Florida, it has conducted no business in F lo rid a at any time relevant to Plaintiff's claims, and maintains no office, employees or assets in Florida." (Id. at ¶ 7.) Gayer further contends that Easy Fly failed to comply with the " a ff id a v i t of compliance" requirement of Florida Statutes § 48.161. Alternatively, Gayer s e e k s to dismiss the Complaint for lack of personal jurisdiction based upon his lack of c o n ta c ts with Florida. O n May 18, 2010, the Magistrate Judge held a hearing on Gayer's Motion. The Order a n d Recommendation was subsequently issued on May 26, 2010. II. M a g is tr a te Judge's Order and Recommendation

T h e Order and Recommendation, inter alia, recommends the Court deny Gayer's re q u e st to quash service and deny without prejudice Gayer's request to dismiss the Complaint f o r lack of personal jurisdiction. First, with regard to the issue of service, the Magistrate J u d g e accepted Easy Fly's "affidavit of compliance" nunc pro tunc and found Easy Fly had c o m p lied with the requirements of Florida Statutes § 48.161. Finding that Gayer was at a
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Gayer previously submitted an undated affidavit as part of his motion. (See D.E.

37-1.) 4

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m in im u m holding himself out as the registered agent and manager for Aventura, substituted s e rv i c e via Florida's Secretary of State was permitted. Second, the Order and

R e c o m m e n d a tio n found premature the issue of whether personal jurisdiction exists over G a ye r. The Magistrate Judge found: A t this juncture, we simply do not know enough about Gayer's ties to Florida to make a determination as to personal jurisdiction. What we do know is that th e Florida's Division of Corporations website reflects that Gayer is listed as the registered agent for at least four (4) active Florida corporations ­ Aventura b e in g one of them. (O rd e r and Recommendation at 5.) The Magistrate Judge determined that based upon the la c k of discovery in this case, and assuming that Gayer at a minimum filed annual reports and o th e r documents with the Department of State, the issue of personal jurisdiction was p re m a tu re . Gayer's objects to both aspects of the Order and Recommendation. First, Gayer a rg u e s he did not engage in business in Florida merely because he was listed as the registered a g e n t and manager for Aventura. Therefore, service was insufficient under Florida's longa rm statute. Second, Gayer objects to the Magistrate Judge's analysis of personal

ju ris d ic t io n . Gayer's affidavit sets forth that he conducts no business in Florida and the C o m p la in t alleges no wrongful conduct that occurred in Florida. Gayer further argues that u n d e r the "corporate shield doctrine," any activity undertaken by Gayer on behalf of A v e n tu ra does not provide a basis for jurisdiction under Florida's long-arm statute, Florida S ta tu te s § 48.193. Gayer argues that the only evidence supporting personal jurisdiction

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s u b m itte d by Easy Fly is the affidavit of Talal Wahab ("Wahab"), submitted on the day of th e hearing before the Magistrate Judge.4 (See Wahab Affidavit, D.E. 67-1.) That affidavit s ta te s , "[d]uring the discussions between Easy Fly, S.A.L. and Aventura Aviatiton [sic], LLC a n d Allen Blattner and Henry Gayer, I had meetings with Henry Gayer in Miami, Florida, d u rin g the first week of January, 2009 to discuss details of the transaction." (Id. at ¶ 4.) N o th in g else is alleged either in the Complaint or Wahab's Affidavit that provides any other c o n n e ctio n between any of the defendants and Florida. Gayer argues that Easy Fly has failed to set forth any facts sufficient for personal jurisdiction in response to his own affidavit w h ic h conclusively denies any facts which would demonstrate any contacts with Florida. G a ye r further argues that the "alleged isolated meetings in the first week of January 2009 in w h ic h discussions were had concerning the contract to be signed between the parties is not a sufficient minimum contact to give rise to general personal jurisdiction." (D.E. 86 at 4.) F in a lly, Gayer objects to the Magistrate Judge's use of information from the Florida Division o f Corporation's website as it was not part of the record and neither party asked the M a g i str a te Judge to take judicial notice of such records. III. S t a n d a r d of Review

U p o n receipt of the Order and Recommendation and Gayer's Objections, the Court m u s t now "make a de novo determination of those portions of the report or specified p ro p o s e d findings or recommendations to which objection is made." 28 U.S.C. §

It is unclear whether the Magistrate Judge considered Wahab's affidavit as part of its determination. 6

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6 3 6 (b )(1 )(C ); see FED. R. CIV. P. 72(b)(3). The Court "may accept, reject, or modify, in w h o le or in part, the findings or recommendations made by the magistrate judge." Id. In m a k in g its determination, the district court is given discretion and "is generally free to e m p lo y the magistrate judge's findings to the extent that it sees fit." Amlong & Amlong, P .A . v. Denny's, Inc., 500 F.3d 1230, 1245 (11th Cir. 2007). IV . D is c u s s io n A. S e r v i c e of Process

F lo r id a Statutes § 48.181(1) authorizes service on non-residents engaging in business in Florida and states: T h e acceptance by any person or persons, individually or associated together a s a copartnership or any other form or type of association, who are residents o f any other state or country, and all foreign corporations, and any person who is a resident of the state and who subsequently becomes a nonresident of the sta te or conceals his or her whereabouts, of the privilege extended by law to n o n r e s id e n ts and others to operate, conduct, engage in, or carry on a business o r business venture in the state, or to have an office or agency in the state, c o n stitu te s an appointment by the persons and foreign corporations of the S e c re ta ry of State of the state as their agent on whom all process in any action o r proceeding against them, or any of them, arising out of any transaction or o p e ra tio n connected with or incidental to the business or business venture may b e served. The acceptance of the privilege is signification of the agreement of th e persons and foreign corporations that the process against them which is so s e rv e d is of the same validity as if served personally on the persons or foreign c o r p o r a tio n s . F lo r id a Statutes § 48.161(1) describes the method of substituted service and states: W h e n authorized by law, substituted service of process on a nonresident or a p e rs o n who conceals his or her whereabouts by serving a public officer d e sig n a te d by law shall be made by leaving a copy of the process with a fee of $ 8.75 with the public officer or in his or her office or by mailing the copies by c e rtif ie d mail to the public officer with the fee. The service is sufficient service 7

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o n a defendant who has appointed a public officer as his or her agent for the s e rv ic e of process. Notice of service and a copy of the process shall be sent f o rth w ith by registered or certified mail by the plaintiff or his or her attorney to the defendant, and the defendant's return receipt and the affidavit of the p la in tif f or his or her attorney of compliance shall be filed on or before the re tu rn day of the process or within such time as the court allows, or the notice a n d copy shall be served on the defendant, if found within the state, by an o f f ic e r authorized to serve legal process, or if found without the state, by a s h e rif f or a deputy sheriff of any county of this state or any duly constituted p u b l ic officer qualified to serve like process in the state or jurisdiction where th e defendant is found. The officer's return showing service shall be filed on o r before the return day of the process or within such time as the court allows. T h e fee paid by the plaintiff to the public officer shall be taxed as cost if he or s h e prevails in the action. The public officer shall keep a record of all process s e rv e d on him or her showing the day and hour of service. " In order to serve a nonresident pursuant to section 48.181, the complaint must allege s p e c if ic facts which show that the defendant is conducting business in Florida and that the c a u se of action arose from business activities within this state." Newberry v. Rife, 675 So. 2 d 684, 685 (Fla. 2d DCA 1996) (citing Connell v. Ott Research & Dev., Inc., 377 So. 2d 2 1 9 (Fla. 3d DCA 1979)); Pelycado Onroerend Goed B.V. v. Ruthenberg, 635 So. 2d 1001, 1 0 0 3 (Fla. 5th DCA 1994). Florida courts have further explained that, "in order to support s u b s titu te d service of process on a defendant, the complaint must allege the jurisdictional re q u ire m e n ts prescribed by statute. If it fails to do so, then a motion to quash process should b e granted." Alhussain v. Sylvia, 712 So. 2d 806, 806 (Fla. 4th DCA 1998) (citing Farouki v . Attel et Cie, 682 So. 2d 1185 (Fla. 4th DCA 1996); Wiggam v. Bamford, 562 So. 2d 389, 3 9 0 (Fla. 4th DCA 1990)). T h e Court finds service should be quashed. Although the Magistrate Judge

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d e te rm in e d substitute service was properly effected because Gayer was holding himself out as the registered agent and manager of a Florida corporation, the Court disagrees. Easy Fly's C o m p la in t does not set forth any specific facts which show Gayer, as an individual or even o n behalf of Aventura, conducted any business in Florida or that any cause of action arose f ro m business activities in the state. The Complaint very generally states "[t]his Complaint a ris e s from Defendants' business activities in Florida." In his motion to quash service, Gayer v ery clearly sets forth in an affidavit that he does not operate, conduct, engage in, or carry o n a business in Florida, did not appoint a public officer as his agent for service, and is not a n alter ego of Aventura Aviation, L.L.C. In response, Easy Fly did not set forth any facts d e m o n s tra tin g Gayer conducts or engages in business in Florida or that any cause of action a ris e s from such business activities. This despite numerous opportunities to do so through v ariou s pleadings and at the hearing conducted by the Magistrate Judge. Thus, the Court f in d s Easy Fly has failed to meet the requirements for substituted service of process under § 48.181 and service should be quashed. Additionally, the Court notes strict compliance with F lo rid a 's statutes regarding service of non-residents is required and service could have been q u a sh e d based upon Easy Fly's failure to timely file an affidavit of compliance. See P elyca d o , 635 So. 2d at 1003-04 ("Absent strict compliance with the statutes, the trial court h ad no jurisdiction"). B. P e r so n a l Jurisdiction

" A plaintiff seeking the exercise of personal jurisdiction over a nonresident defendant b e a rs the initial burden of alleging in the complaint sufficient facts to make out a prima facie 9

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c a se of jurisdiction." United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009) (c itin g Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1214 (11th Cir. 1999); Polskie Linie O c e an ic z n e v. Seasafe Transp. A/S, 795 F.2d 968, 972 (11th Cir. 1986)). Where the d e f en d a n t challenges jurisdiction by submitting affidavit evidence in support of its position, " th e burden traditionally shifts back to the plaintiff to produce evidence supporting ju ris d ic tio n ." Id. (quoting Meier ex rel. Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1268 (1 1 th Cir. 2002)). "A federal court sitting in diversity undertakes a two-step inquiry in determining w h e th e r personal jurisdiction exists: the exercise of jurisdiction must (1) be appropriate under th e state long-arm statute and (2) not violate the Due Process Clause of the Fourteenth A m e n d m e n t to the United States Constitution." Id. Florida's long-arm statute provides, in re lev a n t part, that: A n y person, whether or not a citizen or resident of this state, who personally o r through an agent does any of the acts enumerated in this subsection thereby s u b m its himself or herself and, if he or she is a natural person, his or her p e rs o n a l representative to the jurisdiction of the courts of this state for any c a u s e of action arising from the doing of any of the following acts: ( a ) Operating, conducting, engaging in, or carrying on a business or b u s in e ss venture in this state or having an office or agency in this state. (b) Committing a tortious act within this state. F LA. STAT. § 48.193(1). A defendant may also be subject to general jurisdiction under F lo rid a 's long-arm statute as provided in Florida Statutes § 48.193(2) which states, "[a] d e f en d a n t who is engaged in substantial and not isolated activity within this state, whether

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s u c h activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the c o u rts of this state, whether or not the claim arises from that activity." T h e Court finds Easy Fly has failed to allege sufficient facts to establish a prima facie case of jurisdiction and has failed to produce any evidence supporting jurisdiction in response t o Gayer's affidavit and Motion. Easy Fly's Complaint fails to allege sufficient facts d e m o n s tra tin g Talal Wahab engaged in business in Florida and that any cause of action arises f ro m those business activities. See Pelycado, 635 So.2d at 1003 (trial court lacks jurisdiction w h e re the plaintiff's complaint fails to set forth jurisdictional allegations that the defendant i s engaged in business in the state and that the cause of action arises from these business a c tiv itie s); Newberry, 675 So.2d at 684 (same). Although the Complaint states that "[t]his C o m p la in t arises from Defendants' business activities in Florida," it does not allege that G a ye r conducts business in Florida. (See Complaint at ¶ 7.) Aside from this deficiency, the g e n e ra l allegations contained in the Complaint also do not allege any facts which show Gayer w a s conducting business in Florida or that any cause of action arose from such business ac tiv ities in Florida. Thus, Easy Fly fails to allege sufficient facts in its Complaint to support p e rs o n a l jurisdiction over Gayer. Additionally, once jurisdiction was challenged by Gayer, Easy Fly fails to bolster its C o m p l a in t through affidavits of its own or through any other evidence establishing ju risd ictio n . Easy Fly has failed to set forth any facts supporting personal jurisdiction as to G a ye r. The only evidence which remotely supports jurisdiction is one paragraph contained

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in Talal Wahab's affidavit.5 That paragraph vaguely states, "[d]uring the discussions b etw ee n Easy Fly, S.A.L. and Aventura Aviatiton [sic], LLC and Allen Blattner and Henry G a ye r, I had meetings with Henry Gayer in Miami, Florida, during the first week of January, 2 0 0 9 to discuss details of the transaction." As in Mazer, Easy Fly has "proffered no c o m p e te n t evidence to establish jurisdiction in opposition to the denials of the jurisdictional a lle g a tio n s " by Gayer. 556 F.3d at 1280. Moreover, the fact that Gayer serves as the re g is te re d agent for Aventura and may serve as the registered agent for several other Florida c o rp o ra tio n s,6 is insufficient to demonstrate Gayer conducted business or committed any torts in Florida or engaged in any substantial activity within this state. The record is completely d e v o id of any facts demonstrating Gayer possessed minimum contacts with Florida such that th i s Court's exercise of jurisdiction over him in this action would not violate due process. T h u s , Easy Fly's Complaint fails to allege sufficient facts to demonstrate personal jurisd iction and it has not met its burden in producing evidence in rebuttal to Gayer's c h a llen g e to personal jurisdiction and corresponding affidavit. T h e Court also finds that jurisdictional discovery is not warranted. Although the M a g is tra te Judge determined the issue of personal jurisdiction was premature, the Court finds

This information was not contained in the Magistrate Judge's Order and Recommendation nor in any of the pleadings. Moreover, Easy Fly does not even appear to be relying upon Wahab's affidavit as it is never mentioned in Easy Fly's several briefs submitted on this issue. As the record is somewhat unclear as to Gayer's involvement as the registered agent for several other Florida corporations and it appears neither side requested the Magistrate Judge take judicial notice of such facts, the Court declines to consider Gayer's involvement with other Florida corporations as part of this jurisdictional analysis. 12
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E a sy Fly is not automatically entitled to conduct jurisdictional discovery where the C o m p lain t and affidavits submitted fail to support personal jurisdiction and Easy Fly itself h a s failed to request discovery or explain what discovery is needed. Easy Fly did not seek le a v e to conduct jurisdictional discovery in its response to Gayer's Motion.7 (See D.E. 47; M a z e r, 556 F.3d at 1280-81 (finding the district court did not abuse its discretion in d is m is s in g a defendant for lack of personal jurisdiction instead of granting a request for ju ris d i c ti o n a l discovery where the defendant "never formally moved the district court for ju ris d ic tio n a l discovery but, instead, buried such requests in its briefs as a proposed a lte rn a tiv e " ).) Therefore, based upon the facts of this case, the Court finds that permitting ju ris d ic tio n a l discovery despite an absence of facts supporting jurisdiction or any formal re q u e s t for such discovery, would be inappropriate. Accordingly, consistent with this Order, it is hereby ORDERED AND ADJUDGED th a t: 1. T h e Magistrate Judge's May 26, 2010, Order and Recommendation is O V E R R U L E D insofar as Defendant Henry Gayer's Motion to Quash Service, o r Alternatively Motion to Dismiss for Lack of Personal Jurisdiction (D.E. 37) is GRANTED; 2. P la in t if f ' s substituted service upon Defendant Henry Gayer is QUASHED;

Easy Fly's response to Gayer's Objections and corresponding memorandum of law argues that although it feels it has set forth sufficient facts to establish personal jurisdiction it also plans to conduct jurisdictional discovery to demonstrate Gayer possesses sufficient minimum contacts with Florida in light of the Magistrate Judge's ruling. (See D.E. 88 at 5.) 13

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3.

T h e Complaint is DISMISSED without prejudice as to Defendant Henry G a ye r pursuant to Rules 12(b)(2) and 12(b)(4) of the Federal Rules of Civil P r o c e d u re due to lack of personal jurisdiction and insufficient service of p ro c e s s .

DONE AND ORDERED in Chambers at Miami, Florida, this 9th day of November, 2010.

____________________________________ J O A N A. LENARD U N I T E D STATES DISTRICT JUDGE

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