Thomas et al v. Brown et al
Filing
106
ORDER granting 27 Defendants' Motion to Dismiss for Lack of Jurisdiction; Order Granting 81 Motion for Leave to Amend for purposes of considering Defendants' Motion to Dismiss for Lack of Jurisdiction. Signed by Judge James I. Cohn on 3/22/2012. (prd)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-62261-CIV-COHN/SELTZER
ROBERT THOMAS, FREDERICK LAUFER,
and BRYAN KAUFMAN,
Plaintiffs,
v.
TROY R. BROWN, GARY S. DESBERG,
JERRY A. GORSKI, EDMUND G. KAUNTZ,
WILLIAM M. MILLS, PAUL J. SINGERMAN,
MICHAEL R. STAVNICKY, RONALD J. TEPLITZKY
individually, and SINGERMAN, MILLS, DESBERG
& KAUNTZ CO. L.P.A., a foreign limited professional
association doing business within Florida,
Defendants.
__________________________________________/
ORDER GRANTING MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
THIS CAUSE is before the Court upon Defendants’ Motion to Dismiss for Lack of
Personal Jurisdiction [DE 27], Plaintiffs’ Amended Response in Opposition [DE 86],
Defendants’ Reply [DE 93], Plaintiffs’ Motion for Leave to Amend [DE 81], Defendants’
Response in Opposition [DE 96] and all of the jurisdictional discovery materials filed in
regard to the motion to dismiss.1 The Court has carefully considered the entire record in
this case, and is otherwise fully advised in the premises.2
1
Although Plaintiffs had received an extension until March 14, 2012 [DE 98], to
file their reply memorandum, no reply was filed by close of business on March 21,
2012.
2
Upon request of the Plaintiffs [DE 56], the Court had set a hearing on
Defendants’ Motion to Dismiss [DE 88], and then reset the hearing due to the parties’
schedule [DE 95]. Plaintiff then filed an unopposed motion to cancel the hearing [DE
104], which the Court granted [DE 105].
I. BACKGROUND
This action concerns a dispute over funds disbursed after an asset sale. According
to the complaint filed in state court [DE 1-2] and the proposed Amended Complaint [DE
81-1], Plaintiffs Robert Thomas, Frederick Laufer, and Bryan Kaufman (“Plaintiffs”) are
minority shareholders of Apex Radiology Inc. (“Apex”), a Florida corporation, holding 11%,
17%, and 21%, respectively, of Apex. On June 29, 2007, the shareholders of Apex
elected Wade Rome, a 45% Apex owner at the time and Apex’s President, to be their
representative in negotiating an asset sale with Franklin & Seidelmann, LLC (“F&S”).3 In
July of 2007, Apex entered into an Asset Purchase Agreement to sell all of its assets to
F&S. The initial proceeds were to be used to pay down Apex’s debts and then distribute
funds to shareholders on a pro-rata basis. After making the initial payment and two
quarterly payments, F&S stopped further payments to Apex. In May of 2008, Rome hired
Defendant Singerman Mills Desberg & Kauntz Co., L.P.A. (“Singerman Mills”), a law firm
in Ohio, to represent Apex in an action against F&S in federal court in Ohio. However, as
now described in the proposed Amended Complaint, Defendant Singerman Mills was
“retained to represent Rome pursuant to an engagement letter sent by Defendants to
Rome.” Amended Complaint, ¶ 35; Exhibit X to Plaintiffs’ Amended Response [DE 8626]. Neither Apex nor the Apex shareholders were named as clients. Id. Nonetheless,
Defendants billed Apex and the Apex shareholders for their legal bills and did not seek a
conflict waiver, though Defendants’ billing records indicate that “Wade Rome” was the
3
On or about March 4, 2010, Rome acquired additional shares from another
minority shareholder, putting him at 50.823% of ownership. Amended Complaint at ¶
13, n. 1 [DE 81-1].
2
client. Id., ¶¶ 36-37; Exhibit Y to Plaintiffs’ Amended Response [DE 86-27]. Plaintiffs
contributed their own funds, through Rome, to finance the litigation against F&S. Plaintiffs
allege that they believed that Defendants also represented them as Apex shareholders.
Finally, unbeknownst to Plaintiffs at the time, Rome also hired Defendants to represent
him in a personal action against F&S.
The action filed by Defendants against F&S on behalf of Apex was stayed while the
parties arbitrated the claims. In late November of 2009, the arbitration panel ruled in favor
of Apex, resulting in a significant net award for Apex. Although Apex regularly maintained
its bank account in Florida, on December 4, 2009 a wire transfer of over $1.5 million was
sent by Defendants to an Apex bank account in Missouri set up by Wade Rome.
Amended Complaint, ¶¶ 74 - 79; Exhibit Z to Plaintiffs’ Amended Response [DE 86-28].
Plaintiffs allege that these funds were never divided among shareholders and they never
received any proceeds. Plaintiffs have filed suit in Florida state court to recover that
money from Rome and his wife. Id., ¶ 146.
Meanwhile, on November 9, 2009, a creditor of Apex sued Apex and its individual
shareholders in Florida for non-payment of a debt. Id., ¶ 68. Plaintiffs began to realize
that Apex’s debts were not paid off by Rome from the initial payment by F&S. On
November 30 and December 3, 2009, Plaintiffs notified Defendants that they were now
represented by Aaron Resnick, Esq. and requested that Defendants communicate with
Mr. Resnick about all matters. Id., ¶¶ 69-70.
In this action, Plaintiffs contend that Singerman Mills, along with eight individual
shareholders of Singerman Mills (collectively, “Defendants”), breached their duty to
Plaintiffs as counsel for the Apex shareholders by entrusting the arbitration award funds
3
solely to Rome. See Counts I and II.4 Defendants deny that they ever represented
Plaintiffs (the individual Apex shareholders). Plaintiffs also allege that Defendants have
breached Ohio Rules of Professional Conduct by not obtaining waivers of conflict from
Plaintiffs (Count III).5 Plaintiffs allege negligence, gross negligence, fraud, civil theft,
aiding and abetting civil theft, conspiracy to commit civil theft, and aiding and abetting
conversion by Defendants in their failure to transfer funds from the arbitration award to
Plaintiffs. Counts IV through X of Amended Complaint.6 Plaintiffs seek an award of actual
damages in addition to declaratory relief.
Defendants timely removed this action from state court on the grounds of diversity
jurisdiction. Defendants moved to dismiss the action for lack of personal jurisdiction [DE
27]. Plaintiffs moved for remand to state court [DE 31]. The Court denied the motion to
remand [DE 40] and granted Plaintiffs’ motion for jurisdictional discovery [DE 47]. After
completing jurisdictional discovery, Plaintiffs filed their opposition to the motion to dismiss.
Plaintiffs have also sought to dismiss four individual Defendants [DE 80] and have moved
for leave to amend its complaint.
Defendants are attorneys and shareholders in a law firm with offices in Ohio. The
attorneys do not practice law in Florida, do not own property in Florida, do not have bank
4
The Amended Complaint pleads Legal Malpractice as Count II.
5
This claim has been removed from the Amended Complaint and replaced with
a claim for breach of fiduciary duty and duty of care as escrow agent/trustee of funds
for sending the arbitration proceeds to a bank account in Missouri controlled by Wade
Rome rather than Apex’s accounts in Florida. Amended Complaint, ¶¶ 175-198.
6
Plaintiffs have dropped claims in the initial Complaint that sought a declaratory
judgment that Defendants represented them, and that Defendants’ current and future
representation of the Romes is a conflict of interest. Complaint, ¶¶ 202-239 [DE 1-2].
4
accounts in Florida, nor do they market themselves to Florida. Over the last four years,
only 1.2% of the Singerman Mills firm’s clients are in Florida or have a Florida connection,
while just 3.6% of their collected fees come from Florida. Defendant Singerman, Mills et
al’s Notice of Service of Answers to Plaintiffs’ Jurisdictional Interrogatories at pp. 6-7 [DE
60-1]. Plaintiffs also have discovered some of these instances in which Defendants did
work for Florida clients. See Plaintiffs’ Amended Response at pp. 4-6.
In the action that precipitated this lawsuit, Defendants represented Apex, a Florida
corporation, in a lawsuit filed in Ohio. Defendants billed 743 hours representing Apex in
the related action, and billed $157,000 in legal fees. Plaintiffs put forth evidence by
affidavit that individual Defendant Michael Stavnicky communicated with Plaintiffs Bryan
Kaufman and Fred Lauder while these Plaintiffs were in Florida [DE 59-1]. These
communications were in the course of Stavnicky representing Apex in the litigation and
arbitration against F&S. There is no evidence that Defendants ever traveled to Florida to
meet with Plaintiffs. Plaintiffs all believed that Defendants were representing them as
individual shareholders, and not just representing Apex.
II. DISCUSSION
A. Preliminary Matters
At the time Plaintiffs filed their opposition to the motion to dismiss, Plaintiffs also
filed a Notice of Voluntary Dismissal Without Prejudice as to Defendants Troy Brown,
Gary Desberg, Paul Singerman, and Ronald Teplitzky [DE 80] and a Motion for Leave to
Amend Complaint [DE 81]. The Amended Complaint removes four individual defendants,
adds additional allegations and claims, and removes other claims. Defendants oppose
5
the motion for leave to amend on the grounds of futility. Defendants contend that the
additional allegations of the Amended Complaint do not sufficiently address the lack of
personal jurisdiction.
Plaintiffs suggest that the Amended Complaint further supports personal
jurisdiction. However, the Court concludes that even if the motion for leave to amend is
granted, the Court must decide the pending personal jurisdiction motion under Fed. R.
Civ. P. 12(b)(2), now fully briefed and argued. As discussed below, because Defendants
have submitted affidavits supporting their motion to dismiss and Plaintiffs have had the
opportunity to conduct jurisdictional discovery, the Court may look beyond the allegations
of the Amended Complaint. For purposes of deciding the personal jurisdiction issue, the
Court will deem the Amended Complaint as the operative pleading.7
B. Personal Jurisdiction
The determination of personal jurisdiction over a nonresident defendant requires a
two-part analysis. When jurisdiction is based on diversity, Rule 4(e) of the Federal Rules
of Civil Procedure requires that assertion of jurisdiction be determined by the state
long-arm statute. Cable/Home Communication Corporation v. Network Productions, Inc.,
902 F.2d 829, 855 (11th Cir. 1990). If there is a basis for the assertion of personal
jurisdiction under the state statute, the Court must next determine whether sufficient
minimum contacts exist to satisfy the Due Process Clause of the Fourteenth Amendment
so that maintenance of the suit does not offend “traditional notions of fair play and
7
Defendants have also moved to dismiss the initial Complaint for failure to state
a claim pursuant to Fed. R. Civ. P. 12(b)(6). Because the Court is granting the motion
to dismiss for lack of personal jurisdiction, the Court need not reach the Rule 12(b)(6)
issues.
6
substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945);
Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla. 1989). Only if both prongs
of the Due Process analysis are satisfied may this Court exercise personal jurisdiction
over a nonresident defendant. Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 256 (11th
Cir. 1996) (citing Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir.1990); International Shoe
Co. v. Washington, 326 U.S. at 316).
When the district court does not conduct a discretionary evidentiary hearing on a
motion to dismiss for lack of personal jurisdiction, the plaintiff must establish a prima facie
case of personal jurisdiction over a nonresident defendant. See Cable/Home
Communication, 902 F.2d at 855. A prima facie case is established if the plaintiff presents
enough evidence to withstand a motion for directed verdict. E.g. Morris v. SSE, Inc., 843
F.2d 489, 492 (11th Cir. 1988) (citations omitted). The district court must accept the facts
alleged in the complaint as true, to the extent they are uncontroverted by the defendant's
affidavits. However, where the plaintiff's complaint and the defendant's affidavits conflict,
the district court must construe all reasonable inferences in favor of the plaintiff.8
Robinson, 74 F.3d at 255 (11th Cir. 1996) (citing Madara, 916 F.2d at 1514). In this
action, the facts are not in dispute.
C. Florida Long-Arm Statute
According to Plaintiffs’ Amended Response, Plaintiffs assert jurisdiction under
8
Plaintiffs contend that Defendants’ affidavits are self-serving and conclusory,
and therefore are insufficient to rebut the allegations of the Complaint. The Court
disagrees. The burden remains on Plaintiffs to show that personal jurisdiction exists.
7
Florida Statutes §§ 48.193(1)(a), (b), (g) and (2). Amended Response at p. 15.9 These
subsections state in relevant part that:
(1) Any person, whether or not a citizen or resident of this state, who
personally or through an agent does any of the acts enumerated in this
subsection thereby submits himself or herself and, if he or she is a natural
person, his or her personal representative to the jurisdiction of the courts of
this state for any cause of action arising from the doing of any of the
following acts:
(a) Operating, conducting, engaging in, or carrying on a business or business
venture in this state or having an office or agency in this state.
(b) Committing a tortious act within this state.
...
(g) Breaching a contract in this state by failing to perform acts required by the
contract to be performed in this state.
...
(2) A defendant who is engaged in substantial and not isolated activity within
this state, whether such activity is wholly interstate, intrastate, or otherwise,
is subject to the jurisdiction of the courts of this state, whether or not the
claim arises from that activity.
1. Operating a Business
Plaintiffs argue in opposition to the motion to dismiss that Singerman and Mills, the
Defendant law firm, was “involved in numerous business dealings with Florida companies
and individuals, including Apex and its shareholders, in providing legal services.”
Plaintiffs’ Response at p. 21 [DE 86]. However, the evidence in the record indicates that
the use of the term “numerous” is conclusory, as that the total Florida dealings of
9
The Court notes that Plaintiffs’ Amended Complaint lists as an additional basis
for jurisdiction language from Fla. Stat. § 48.193(f) “caused injury to persons and/or
entities in the State of Florida by acts or omissions outside the state involving the
solicitation, sale and/or exercise of services in the state.” Amended Complaint, ¶ 9 [DE
81-1]. However, Plaintiffs do not address this subsection in their Amended Response
to the Motion.
8
Defendants were relatively small, numbering 1.2% of the firm’s clients and 3.6% of the
fees collected over the past four years.
The Eleventh Circuit Court of Appeals, in interpreting Florida law, has stated that:
“In order to establish that a defendant is ‘carrying on business' for the
purposes of the long-arm statute, the activities of the defendant must be
considered collectively and show a general course of business activity in the
state for pecuniary benefit.” Future Tech. Today, Inc. v. OSF Healthcare
Sys., 218 F.3d 1247, 1249 (11th Cir. 2000) (per curiam). Factors relevant,
but not dispositive, to this analysis include the presence and operation of an
office in Florida, see Milberg Factors, Inc. v. Greenbaum, 585 So.2d 1089,
1091 (Fla. Dist. Ct. App.1991), the possession and maintenance of a license
to do business in Florida, see Hobbs v. Don Mealey Chevrolet, Inc., 642
So.2d 1149, 1153 (Fla. Dist. Ct. App.1994), the number of Florida clients
served, see Milberg Factors, Inc., 585 So. 2d at 1091, and the percentage of
overall revenue gleaned from Florida clients, see id.; Sculptchair, Inc. v.
Century Arts, Ltd., 94 F.3d 623, 628 (11th Cir. 1996).
Horizon Aggressive Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162, 1167 (11th Cir.
2005) (rejecting jurisdiction over an out of state auditing company that worked for a Florida
based partnership by communicating by telephone and accessing the Florida computers
where Florida clients accounted for less than five percent of total business). Applying this
decision to the present case, the Court concludes that Defendants do not operate a
business in Florida for purposes of the long-arm statute.
2. Committing a Tortious Act
Plaintiffs’ primary argument in favor of personal jurisdiction is that Defendants
committed a tortious act within Florida because Plaintiffs’ economic interests were
impacted in Florida. Plaintiffs rely upon Wendt v. Horowitz, 822 So.2d 1252, 1260 (Fla.
2002), wherein the Florida Supreme Court held that “telephonic, electronic or written
communications into Florida may form the basis for personal jurisdiction under section
9
48.193(1)(b) if the alleged cause of action arises from the communications. . . .” Wendt
involved a non-resident attorney who advised a Canadian corporation and Florida
investors that certain notes and certificates were not securities under Florida and federal
law, and who prepared documents for use in Florida. Wendt, 822 So.2d at 1254-1255
(emphasis added). In issuing its opinion in Wendt, the Florida Supreme Court did not
determine whether personal jurisdiction had been established. Id. at 1260.
Plaintiffs also cite to Beta Drywall Acquisition, LLC v. Mintz & Fraade, P.C., 9 So.3d
651 (Fla. Dist. Ct. App. 2009), wherein a Florida District Court of Appeal found personal
jurisdiction over a New York law firm for committing the tort of legal malpractice in Florida.
The attorneys were engaged to prepare agreements to be filed in Florida in connection
with acquisition of the assets of a Florida company. The plaintiffs alleged that the
attorneys were negligent for failing to formalize a written operating agreement prior to or
contemporaneously with the filing of the acquisition articles. Beta, 9 So. 3d at 652. The
court concluded that though most of the legal services were performed in New York, the
defendants caused faulty legal documents to be filed in Florida resulting in injury to a
Florida resident, thus creating jurisdiction under § 48.193(1)(b). Similarly, Plaintiffs rely on
Deloitte & Touche v. Gencor Industries, Inc., 929 So.2d 678, 683 (Fla. Dist. Ct. App.
2006), wherein the court found personal jurisdiction because a non-resident accounting
firm (allegedly) sent false reports to Florida that it knew would be relied upon in Florida
and were relied upon in Florida by plaintiff.
Defendants point out that the Beta decision was distinguished in another action
against a non-resident law firm. In American Torch Tip Co. v. Dykema Gossett PLLC,
2011 WL 3171811 (M.D. Fla. July 8, 2011), a Chicago law firm, which advertised itself as
10
a national law firm, represented a Florida plaintiff who was sued for patent infringement in
New Hampshire. The non-resident attorney sent plaintiff discovery to sign or approve,
traveled to Florida to prepare plaintiff’s defenses, sent invoices to plaintiff in Florida and
was paid from Florida. The court found that the non-resident attorney’s Florida contacts
were insufficient for jurisdiction under § 48.193(1)(b).
Defendants also rely upon the decision in Hirsch v. Weitz, 16 So. 3d 148 (Fla. Dist.
Ct. App. 2009), wherein the court did not find jurisdiction over a New York attorney who
performed legal work in New York concerning a divorce petition and sale of a New York
business. After the New York court entered judgment, the former wife brought a
garnishment action in Florida. The husband had moved to Florida during the divorce
negotiations, had paid the attorney from Florida, and had communicated with the attorney
from Florida. The Court concluded that if jurisdiction were found, it would mean “virtually
any lawyer who communicated with a Florida resident regarding legal advice could be
sued for legal malpractice in Florida.” Hirsch, 16 So.3d at 151.
Faced with these competing precedents, the Court concludes that Plaintiffs have
failed to show that Defendants committed a tort in Florida. The Florida Supreme Court
decision in Wendt requires that the alleged cause of action must arise from the
communications into Florida. The communications in this action are limited to
Defendants’ witness preparation of Plaintiffs in the arbitration related to the Ohio action by
Apex against F&S. However, the alleged financial injury to Plaintiffs that forms the basis
of the negligence, gross negligence, civil theft and conspiracy claims was the approval by
Defendants of the wire transfer of the funds from the arbitration award to the Apex
Missouri bank account set up by Wade Rome, rather than to Apex’s accounts in Florida.
11
Additional injuries were alleged due to Defendants’ failure to inform Plaintiffs that they also
represented Wade Rome in his individual action against F&S. However, there is no
evidence that the breach of duty or legal malpractice actions arose from an actual
communication into Florida, nor is there evidence (as there was in Beta and Deloitte &
Touche) that Defendants were to take any action in Florida or prepare any documents for
use in Florida. Therefore, Plaintiffs have failed to show that jurisdiction is warranted under
§ 48.193(1)(b).
3. Breach of Contract
Plaintiffs contend that Defendants’ failure to make the arbitration award payment to
Florida, rather than Missouri, breached a contract. Under Florida law, to find jurisdiction
pursuant to § 48.193(1)(g), a plaintiff must show that “the defendant failed to perform an
act or acts whose performance was to be in Florida and that such breach formed the basis
for the cause of action for which relief is sought by the plaintiff.” Cosmopolitan Health
Spa, Inc. v. Health Industries, Inc., 362 So.2d 367, 368 (Fla. Dist. Ct. App. 1978).
Defendants argue that there is no contract between Plaintiffs and Defendants; no claim for
breach of contract; and there was no contractual obligation to be performed by
Defendants in Florida.
This Court agrees with Defendants that there is no evidence that Defendants had
any contractual obligation to Plaintiffs to send the arbitration award to any particular bank
account owned by Apex. The retainer agreement between Defendants and Wade Rome
(or Apex) does not address transmission of settlement funds. Exhibit X to Plaintiffs’
Amended Response. At best, to the extent Defendants even had such a duty to Apex to
only send the funds to a Florida account, Plaintiffs would not have standing to assert a
12
breach of that contract. Moreover, the arbitration award was not in favor of Plaintiffs, as
individuals or even as shareholders, but rather was in favor of Apex. As Plaintiffs have
failed to meet their burden to show Defendants breached a contractual obligation in
Florida, § 48.193(1)(g) would not apply to Defendants in this action.
4. Substantial and Not Isolated Activity
Plaintiffs ask the Court to find that jurisdiction is proper under § 48.193(2) because
Defendants engaged in substantial and not isolated activity within Florida. The term
“substantial and not isolated activity . . . has been found to mean ‘continuous and
systematic general business contact’ with Florida.” Woods v. Nova Companies Belize
Ltd., 739 So.2d 617, 620 (Fla. Dist. Ct. App. 1999). In Woods, the court found the
defendant met this standard: “By selling approximately eighteen percent of its product to
Florida importers, moving nearly all of its product through the state, purchasing equipment
and supplies from Florida suppliers, utilizing storage facilities in Florida, and establishing
essential business relationships in this state.” 739 So.2d at 620. Defendants in the
present action have less than 4% of their gross revenues derived from Florida clients.
In American Financial Trading Corp. v. Bauer, 828 So.2d 1071 (Fla. Dist. Ct. App.
2002), a Texas resident who initiated 120 transactions to invest $465,000 with a Florida
company was deemed to have continuous and systematic business contact with Florida,
despite the lack of physical contact with Florida. The cause of action in Bauer related to
breach of a settlement agreement that in turn arose from Bauer’s investments with the
Florida company. Id. at 1074-75. The court concluded that personal jurisdiction was
proper under § 48.193(2) because Bauer initiated and maintained continuous contact with
13
the Plaintiff. Id. at 1075.
Bauer relied upon Travel Opportunities of Fort Lauderdale, Inc. v. Walter Karl List
Mgmt., Inc., 726 So.2d 313, 314 (Fla. Dist. Ct. App. 1999), wherein a New York company
that sold 19 lists over two years with a value of $198,000 was deemed not subject to
personal jurisdiction under § 48.193(1)(a). The Bauer court distinguished Travel
Opportunities because Bauer initiated the transactions with the Florida plaintiff, while in
Travel Opportunities, it was the Florida plaintiff who initiated the transactions with a New
York seller of goods. Here, there is no evidence that Defendants ever initiated business
opportunities in Florida – rather, their Florida “business” stems from companies or
individuals who find Defendants in Ohio and use them almost exclusively for Ohio
purposes – but who happen to live or have business in Florida as well.
Upon consideration of the record as a whole, Defendants’ business in Florida is
isolated and not substantial.
D. Due Process
Even if the Court did find that Florida’s long arm statute reached Defendants’
conduct, the Due Process Clause of the United States Constitution protects an individual’s
liberty interest in not being subject to the binding judgments of a forum with which he has
established no meaningful “contacts, ties, or relations.” Int’l Shoe Co. v. State of Wash.,
Office of Unemployment Compensation, 326 U.S. 310, 319 (1945). The due process
component of personal jurisdiction involves a two-part inquiry. In the first prong, the Court
must consider whether Defendant engaged in minimum contacts with the state of Florida.
In the second prong, the Court must consider whether the exercise of personal jurisdiction
over Defendant would offend "traditional notions of fair play and substantial justice."
14
Cronin v. Washington Nat’l Ins. Co., 980 F.2d 663, 670 (11th Cir. 1993) (citing Int’l Shoe
Co., 326 U.S. at 316 ; Madara, 916 F.2d at 1515-16).
1. Minimum Contacts
Minimum contacts involve three criteria: First, the contacts must be related to the
plaintiff's cause of action or have given rise to it. Second, the contacts must involve some
purposeful availment of the privilege of conducting activities within the forum, thereby
invoking the benefits and protections of its laws. Finally, the defendant's contacts within
the forum state must be such that it should reasonably anticipate being hailed into court
there. Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 631 (11th Cir. 1996). The
Supreme Court recently reiterated the importance of the “purposeful availment”
requirement. J. McIntyre Machinery, Ltd. v. Nicastro, 131 S.Ct. 2780, 2787 (2011).10
As noted above, Defendants have no offices, telephone, bank account, or property
of any kind in the state of Florida. Defendants have no ongoing contacts with Florida,
except for an occasional professional conference attending by one individual attorney
defendant. On the other hand, the few contacts with Florida in this action – telephone and
electronic communications with Plaintiffs Laufer and Kaufman to prepare for the
arbitration – were related to plaintiff’s cause of action. However, these contacts did not
involve purposeful availment of conducting business in Florida as the arbitration and the
underlying litigation for which Defendants were hired to represent Apex were not
conducted in Florida. Although Defendants were representing a Florida corporation at the
time, a non-resident attorney who represents a Florida entity in another state and never
10
In Nicastro, this point of law was supported in the lead opinion issued by four
justices, and a separate concurrence by two more justices.
15
comes to Florida for anything to do with the action would not reasonably anticipate being
sued in Florida for those activities. Therefore, the Court concludes that these contacts do
not lead to the finding that Defendants should reasonably anticipate being hailed into court
here over this incident.
2. Traditional Notions of Fair Play and Substantial Justice
As the Court does not find that Plaintiffs have shown a basis for the assertion of
personal jurisdiction under the Florida long-arm statute, nor that Defendants have
minimum contacts with Florida, the Court need not complete the due process analysis.
III. CONCLUSION
Accordingly, it is ORDERED and ADJUDGED as follows:
1.
Plaintiffs’ Motion for Leave to Amend [DE 81] is hereby GRANTED for purposes of
considering Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction [DE 27];
2.
Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction [DE 27] is hereby
GRANTED;
3.
The above-styled action is hereby DISMISSED for lack of personal jurisdiction over
Defendants;
4.
The Clerk may close this case.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 22nd day of March, 2012.
Copies furnished to:
counsel of record
16
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