Gainor v. Sidley, Austin, Brow

Filing 67

MOTION to Dismiss 40 Amended Complaint for Lack of Personal Jurisdiction and Incorporated Memorandum of Law in Support by Michael S. Marx. Responses due by 6/6/2007 (Attachments: # 1 Exhibit 1)(Austin, Michael)

Gainor v. Sidley, Austin, Brow

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Miami Division
Case No. 06-21748 CIV-MARTINEZ/BANDSTRA

MARK J. GAINOR and ELYSE GAINOR,
Plaintiffs,
v.

SIDLEY AUSTIN LLP, et aI.,
Defendants.

/

DEFENDANT MICHAEL S. MARX'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION AND INCORPORATED MEMORANDUM OF LAW IN SUPPORT

McDERMOTT WILL & EMERY LLP
Michael G. Austin (FBN 0457205) E-mail: maustinêlmwe.com 201 South Biscayne Blvd., Ste. 2200
Miami, Florida 33131

Tel: [phone] Fax: [phone]
Of Counsel: Douglas E. Whitney Jocelyn D. Francoeur E-Mail: dwhitneyêlmwe.com jfrancoeurêlmwe.com 227 West Monroe Street

Chicago, Ilinois 60606
[phone]; [phone] FAX
Counsel for Michael Marx

Dockets.Justia.com

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TABLE OF CONTENTS
Page

i. INTRODUCTION..............................................................................................................1

II. FACTUAL BACKGROUND.............................................................................................2
III. ARGUMENT......................................................................................................................5

A. The Amended Complaint Does Not Identify A Basis For Specific
Jurisdiction Under Florida's Long-Arm Statute .....................................................5
B. Exercising Jurisdiction Over Marx Would Not Comport With The Due

Process Clause of the Fourteenth Amendment...................................................... 7
1. Marx Did Not Have Sufficient Contacts With Florida...............................8
2. Exercising Jurisdiction Over Mar Would Offend Traditional

Notions of Fair Play and Substantial Justice ............................................11

IV. CONCLUSION ............................................................................................................... .12

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TABLE OF AUTHORITIES
Page

Cases
Aetna Life & Casualty Co. v. Therm-O-Disc., Inc.,
511 So.2d 992 (Fla. 1987) ........................................................................................................... 7

Alternate Energy Corp. v. Redstone,
328 F. Supp. 2d 1379 (S.D. Fla. 2004) ........................................................................................5

Fleming & Weiss, P. C. v. First Am. Tite Co., 580 So.2d 646 (Fla. Ct. App. 1991 )................................................................................... ........10 Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247 (11th Cir. 2000) ...................................................................................................6
Green v. USF & G Corp.,

772 F. Supp. 1258 (S.D. Fla. 1991).... ................................................................................. ........ 7
Groome v. Feyh,

651 F. Supp. 249 (S.D. Fla. 1986).......................................................................................10, 12 Kim v. Keenan, 71 F. Supp. 2d 1228 (M.D. Fla. 1999).................................................... ...............................8, 10 Oriental Imports & Exports, Inc. v. Madure & Curiel's Bank, N V.,
701 F.2d 889 (1 i th Cir. 1983) .....................................................................................................6 Posner v. Essex Ins. Co.,

178 F.3d 1209 (11 th Cir. 1999) ...................................................................................................8 Robinson v. Giarmarco & Bil, P. c., 74 F.3d 253 (11 th Cir. 1996) ...............................................................................................1 0, 11
Sculptchair, Inc. v. Century Arts, Ltd.,

94 F.3d 623 (11th Cir. 1996) ...................................................................................................5, 8 Steinhilber v. Lamoree, 825 F. Supp. 1003 (S.D. Fla. 1992) ...........................................................................................10 Sun Bank, NA. v. E.F. Hutton & Co., Inc.,
926 F.2d 1030 (11 th Cir. 1991) ........................................................................................... 7, 8, 9

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) ................................... ................................. ........................................... ...11

Statutes
Fla. Stat. § 48.193 ........ ............................................... ..................................... .......... .............. 5, 6, 7

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i. INTRODUCTION
Defendant Michael Marx is a Georgia resident and accountant licensed to practice in the
state of

Georgia who, from the fall of 1996 until August 2000 (and then again briefly in 2002),

was employed in the Atlanta, Georgia office of Arthur Andersen LLP ("Andersen"). In 1999,
Andersen was engaged to assist in the structuring and implementation of a tax strategy involving

the sale of two Georgia entities owned or controlled by Plaintiff Mark Gainor to two Georgia
entities owned or controlled by co-defendant Mark Klopfenstein (the "Gainor Strategy"). Initially as a Senior Staff Accountant and then later as a Tax Manager for Andersen, Marx
assisted in the implementation of

the Gainor Strategy, which Gainor utilized to avoid paying

taxes on approximately $70 milion of capital gains that otherwise would have been subject to
federal and Georgia state income tax. At that time he hired Andersen to assist in implementing
the Strategy, Gainor -like Mar (and Klopfenstein) - was a Georgia resident.

The Gainor Strategy was designed for a Georgia resident, involved the sale of Georgia
entities, was governed by agreements under Georgia law, affected Gainor's Georgia state income

tax obligations, and was reviewed and approved by several different Georgia professionals.

Accordingly, Marx's work on the Gainor strategy occurred in Georgia, and because Gainor
resided in Georgia at the time he elected to engage in and implemented the strategy, virtually all
of

Mar's contacts with Gainor regarding the Gainor Strategy took place in Georgia. It was not

until the year following the implementation of the Gainor Strategy that Gainor (presumably for

tax reasons) established residency in Florida, which necessitated some contact with Florida to

allow for his affairs to be transitioned from Andersen's Atlanta offce to a local Florida
accounting firm.

Gainor and his wife fied this amended complaint in March 2007 seeking, for the first

time, to drag Marx into this Florida litigation that Gainor had first fied nearly three years

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earlier. Gainor's belated claims against Marx are deficient for several reasons. As a threshold

matter, Gainor's claims against Marx canot support a finding that Mar is subject to the
jurisdiction of the courts of this State. i Gainor contends that Mar conspired with various other
defendants to induce Gainor to enter into the Gainor Strategy. As Gainor's own allegations
make clear, however, any contacts Mar had with Gainor prior to the implementation of

that

strategy occurred in Georgia, not Florida. The fleeting contacts Mar had with Gainor after
Gainor unilaterally chose to establish residency in Florida fall far short of establishing the

purposeful availment necessary to support the exercise of jurisdiction in this case. As a result,

Plaintiffs' amended complaint against Mar should be dismissed pursuant to Federal Rule of
Civil Procedure 12(b)(2).

II. FACTUAL BACKGROUND
Mar is a resident of the state of Georgia. (Declaration of Michael Marx ("Mar Decl. "),
~ 1.) Marx has been a licensed Certified Public Accountant in the state of Georgia since

November 2000. (Mar Decl., ~ 3.) He presently works in Atlanta, Georgia as a Senior Tax
Manager for Deloitte & Touche USA LLP. (Id., ~ 6.) Mar has never lived or worked in the
state of

Florida. (Id., ~~ 2, 7.) He is not licensed as an accountant in Florida, and he has never

maintained an office in Florida. (Id., ~~ 7.) Marx does not own or lease property in Florida, and

he does not maintain any ban accounts in Florida. (Id., ~ 9.)
On March 7, 2007, Plaintiffs fied the First Amended Complaint ("F AC" or

"Complaint"). The Complaint alleges only one claim against Mar - namely, that Marx
conspired with Andersen, Sidley Austin, Merril Lynch, and a number of associated

the Court, Gainor's claims against Marx should be dismissed for the same reasons that wil be set forth in the subsequently fied motions of co1 Should the Court determine that Marx is in fact subject to the jurisdiction of

defendant Andersen.

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professionals to induce Gainor to engage in the Gainor Strategy and pay defendants other than
Mar fees associated with the implementation of

that strategy. (FAC, ~~ 51-97.) Gainor does

not allege that Mar received any of

these fees. (FAC, ~ 86.) In fact, he did not. (Mar Decl., ~

17.)

The Complaint focuses primarily on Marx's role as an Andersen employee at the time the

Strategy was structured and implemented. At the time Mar began working on the Gainor
Strategy, he was a Senior Staff Accountant for Andersen, and he was promoted to Tax Manager
later in 1999. (Marx Decl., ~ 10.) Gainor alleges that in late February of 1999, Mar and

another defendant, Anthony Nissley, "advised Gainor that it had a legitimate tax strategy" that

would "substantially reduce the taxes payable" from the lucrative sale of Gainor's medical

services business. (F AC, ~ 95(a).) Gainor contends that between January and August of 1999,
Marx communicated with various other defendants regarding the Gainor Strategy. (F AC, ~~ 62-

66.) Gainor alleges that in August of 1999, Marx - on behalf of Andersen - advised Gainor that
the Strategy, designed by co-defendant Sidley Austin ("Sidley"), would "effectuate a tax savings
of

approximately seventeen milion dollars." (FAC, ~ 67.) He asserts that Mar explained to

Gainor that his participation in the Gainor Strategy would be supported by an opinion letter from
Sidley. (FAC, ~~ 32,67.)

Gainor contends that on August 20, 1999, either Marx or Nissley sent to Gainor "a
schedule confirming the anticipated professional fees and transaction costs that would be

incurred in implementing" the Strategy. (FAC, ~ 68.) This schedule was faxed to Gainor's

home in Georgia. (FAC, ~ 68; Mar Decl. ~ 14, Ex. C) Gainor alleges that between September
and December, 1999, Andersen "coordinated" the activities among the defendants, and he

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contends that Mar made a number of factual representations to Gainor regarding the Strategy on
Andersen's behalf. (FAC, ~ 95.)

Gainor makes no specific allegation regarding any action taken by Marx after October 5,

1999 nor does he allege that Mar committed any specific act in - or even directed at - Florida.

(See FAC, ~ 95(c).) Gainor only generally alleges that "Andersen, through Mar. . .
communicated with Gainor while Gainor was in Florida." (F AC, ~ 20(f).) Gainor does not
allege, however, that the specific conversations described above occurred in the state of Florida,

nor does Gainor allege any specific actions that Mar directed to Gainor after he became a
resident of Florida.

In fact, Marx's communications with Gainor regarding the structue and implementation
of

the Strategy were directed to Gainor in Georgia, not Florida. On September 1, 1999,
job arrangement letters were addressed from Andersen's Atlanta office to Gainor's

Andersen's

Georgia entities, both of which had their principal place of business in Atlanta. (Mar Decl., ~
13, Exs. A, B.) Because Gainor was residing in Georgia at the time, any communication that
Marx had with Gainor regarding implementation of the Strategy occurred in that state. (Mar

Decl., ~~ 15, 16.) The last specific contact that Gainor alleges he had with Marx was on October
5,1999 (FAC, ~ 95(c)), when Gainor was stil a resident of the state of

Georgia. (Marx Decl., ~

24.)
The Gainor Strategy was completed by the end of

December, 1999, and Gainor sought to

establish residency the following year in Florida. (FAC, ~~ 77-78; Marx Decl., ~~ 24-25.) After
Gainor relocated to Florida, Gainor decided that he wanted to replace Andersen, which had been serving as the tax preparer for Gainor and his entities, with a local Florida accounting firm, and

Gainor eventually retained Rachlin Cohen & Holtz for that purpose. (Marx Decl., ~ 25.) Mar

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subsequently made one trip to Florida in February 2000 to assist in transitioning Gainor's work

from Andersen's Atlanta office to this Florida accounting firm. (Id., ~ 26.) Prior to completing
this transition, however, Gainor decided to have Andersen prepare his 2000 federal and Georgia
state income tax retus. Mar assisted in the preparation of

these Federal and Georgia state tax

returs in Andersen's Atlanta office and than mailed the returs to Gainor in Florida for review

and fiing. (Mar Decl., ~ 28.)
Although Marx occasionally spoke with Gainor when he was a resident in Florida, the

purpose of these calls was to faciltate the transition of Gainor's accounting work to Rachlin
Cohen & Holtz and the preparation of

Gainor's federal and Georgia state income tax returs.

(Mar Decl., ~ 29.) Similarly, although Marx may have briefly met with Gainor in Florida after
his February 2000 visit, any such subsequent visits were not related to the structuring or
implementation of the Gainor Strategy or the preparation of

the tax returs for Gainor or his

entities. (Id., ~ 30.) Marx never worked on the preparation of any tax returns for Gainor after

2000, nor did he prepare or work on any Florida state tax returs for Gainor. (Id., ~ 31.)

III. ARGUMENT
In order to establish personal jurisdiction over Marx, Gainor must meet both prongs of a
two-par test set forth by the Eleventh Circuit. First, Gainor's complaint must identify a specific
~

basis for jurisdiction under Florida's long-arm statute. Alternate Energy Corp. v. Redstone, 328
F. Supp. 2d 1379, 1381 (S.D. Fla. 2004) (citing Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d

623, 626 (11 th Cir. 1996)). Second, Gainor must establish that "the defendant has established

suffcient minimum contacts with the state, such that the exercise of jurisdiction wil satisfy the
Fourteenth Amendment's due process requirement by comporting with "traditional notions of

fair

play and substantial justice." Alternate Energy, 328 F. Supp. 2d at 1381-82. As demonstrated
more fully below, Gainor canot fulfill either of

these requirements.
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A. The Amended Complaint Does Not Identify A Basis For Specific Jurisdiction Under Florida's Lone:-Arm Statute.
Gainor makes no allegation that Mar is subject to the general jurisdiction of Florida
cours. Rather, he contends that

jurisdiction over Marx is appropriate under Florida's long-ar

statute, Fla. Stat. § 48.193, because the instant action arises from "one or more" of a series of
acts allegedly made by Marx acting individually or "collectively with the other Defendants."
(FAC, ~ 20.)

As an initial matter, even Gainor's general description ofthe acts purportedly giving rise

to jurisdiction are inaccurate, and thus insufficient, under Florida's long-arm statute. Gainor alleges, for example, that Mar and/or other defendants "caus( ed) injury to persons or property
within the State of Florida arising out of an act or omission outside of Florida." (F AC, ~ 20( c).)

This allegation canot provide jurisdiction under § 48.193, which specifically provides that

causing an injury to persons or property in the State of Florida only gives rise to personal
jurisdiction if, "at or about the time of

the injury, either: (1) The defendant was engaged in

solicitation or service activities within this state; or (2) Products, materials, or things processed,
serviced, or manufactured by the defendant anywhere were used or consumed within this state in

the ordinary course of commerce, trade, or use." Fla. Stat. § 48.193(f). Similarly, Gainor's
allegation that Mar and/or other defendants "breach(ed) a contract in the State of

Florida"

(FAC, ~ 20(d)) does not give rise to jurisdiction under Florida's long-arm statute, which provides

jurisdiction only when a defendant breaches a contract in Florida "by failng to perform acts
required by the contract to be performed in (Florida)." Fla. Stat. § 48.193(g).
Even if Gainor had accurately identified potential bases for jurisdiction under the longar statute, his complaint would fare no better. Gainor bears the burden of justifying use of the

long-arm statute, (see Oriental Imports & Exports, Inc. v. Madure & Curiel's Bank, N V, 701

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F.2d 889,890-91 (11th Cir. 1983)), and he canot meet this burden by simply paroting the
language of

Florida's long-ar statute. Rather, Gainor must "pleadfacts that establish the basis

for jurisdiction." Alternate Energy, 328 F. Supp. 2d at 1382 (citing Future Tech. Today, Inc. v.

OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir. 2000) (emphasis added)). Gainor plainly
has not done so.

Gainor has pled no facts supporting a conclusion that Mar engaged in business in
Florida, committed a tortious act in Florida, caused injury to persons or property within the State
of

Florida while soliciting services or selling products in the State,2 breached a contract in

Florida by failing to perform certain acts in Florida, or actively engaged in the solicitation of

Florida residents for the provision of professional services. Absent such specific factual
allegations, Gainor's invocation of

Florida's long-arm statute must faiL. Green v. USF & G

Corp., 772 F. Supp. 1258, 1261 (S.D. Fla. 1991) ("The Florida long-arm statute is to be strictly

construed to guarantee compliance with due process requirements.,,).3

Finally, Gainor's general allegation that "Andersen, through Marx. . . communicated

with Gainor while Gainor was in Florida," (FAC, ~ 20(f).), is also insuffcient to satisfy the
requirements of the long-arm statute. First, there is no basis to conclude that simply

communicating with a person in Florida, particularly one that is only in the process of
establishing Florida residence, is sufficient to satisfy the long-arm statute. See Harris v.

Shuttleworth & Ingersoll, P. c., 831 So. 2d 706, 708 (Fla. Ct. App. 2002) (recognizing that
2 Notably, the Florida Supreme Court has held that purely economic injuries are insuffcient to confer jurisdiction
over a defendant under § 48.

193(f). Sun Bank, 926 F.2d at 1033 (citing Aetna Life & Casualty Co. v. Therm-O-

Disc., Inc., 511 So.2d 992 (Fla. 1987).)
Florida's long-arm statute, including Fla. Stat. § 48.193(2). Such an allegation could not succeed, because Marx's contacts with Florida jurisdiction if - as demonstrated above - have been sporadic at best. Compare Fla. Stat. § 48.193(2) (authorizing defendant engaged in "substantial and not isolated activity within this state").
3 Gainor does not allege that jurisdiction would be appropriate under any other provisions of

7
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"simply communicating or transferring documents to or within Florida with respect to
transactions in another state" is insufficient to confer jurisdiction under the long-ar statute).

Second, as demonstrated above, Mar only communicated with Gainor in Florida after the
Strategy was implemented. (Marx Decl., ~~ 29-30.) As a result, even if

"communicating with a

plaintiff

in Florida" constituted an action giving rise to jurisdiction under Florida's long-arm

statute, which it does not, Gainor could not establish that his cause of action arose from those
communications. Gainor has accordingly failed to identify any proper basis for specific

jurisdiction under Florida's long-ar statute.
B. Exercisine: Jurisdiction Over Marx Would Not Comport With The Due

Process Clause of the Fourteenth Amendment.
Even if Gainor could successfully plead a basis for jurisdiction under Florida's long-arm

statute, the constitutional guarantee of due process would stil prevent the exercise of jurisdiction

over Marx. The Fourteenth Amendment's Due Process Clause necessitates a two-par inquiry.
See Kim v. Keenan, 71 F. Supp. 2d 1228, 1235 (M.D. Fla. 1999). First, a court must determine

whether a defendant has sufficient "minimum contacts" with the relevant forum. Id. Second, a

court must assess whether the exercise of jurisdiction in that foru would offend "traditional
notions of

fair play and substantial justice." Id. (citing Sculptchair, 94 F.3d 623). Here, neither

standard is (or can be) met.
1. Marx Did Not Have Sufficient Contacts With Florida.

The Eleventh Circuit utilzes a three-part test for determining whether a defendant has

suffcient contacts with a forum to support the exercise of jurisdiction:

First, the contacts must be related to the plaintiffs cause of action. . . Second, the contacts must involve some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum(). Third, the defendant's contacts with the foru must be such that the defendant should reasonably anticipate being haled into court
there.

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Keenan, 71 F. Supp. at 1235 (citing Posner v. Essex Ins. Co., 178 F.3d 1209 (11th Cir. 1999)).

Ultimately, "(t)he key to any constitutional inquiry into personal jurisdiction is forseeability."
Sun Bank, NA. v. E.F. Hutton & Co., Inc., 926 F.2d 1030 (11th Cir. 1991).
In the present case, each of

the contacts related to Gainor's claim against Mar occurred

in Georgia, not Florida. Marx discussed the structure and implementation of the Strategy with
Gainor in Georgia; the job arangement letters with Gainor's Georgia entities were sent from
Andersen's Atlanta offce to those entities in Georgia; and all of

the steps necessary to
residency in

implement the Gainor Strategy were completed prior to Gainor's establishment of

Florida. (Mar Decl., ~~ 13-16,22-24.) Although Marx maintained contact with Gainor once

Gainor relocated to Florida, Gainor's conspiracy claim - which specifically alleges that Marx
and the other defendants induced Gainor "to believe that Defendants had crafted a legal 'tax
strategy'" (F AC, ~ 85) - arose, if at all, from contacts that Mar had with Gainor in Georgia.

Nor can it be said that Mar purposefully conducted activities within Florida such that he
could have reasonably anticipated being haled into court in Florida. Marx did not reach out to
Gainor, solicit Gainor, or initiate an accountant-client relationship when Gainor was a Florida

resident. Rather, when Gainor moved, Mar simply did the minimum necessary to wrap-up
Gainor's Georgia activities and to assist in Gainor's transition of

~

his business and tax affairs
the case law

from Andersen's Atlanta office to a Florida accounting firm. Under no reading of

can this minimal transition activity be construed as activity purposefully directed to the state of
Florida; rather, it constitutes incidental activity that fortuitously landed in the state after a
Georgia resident unilaterally decided to establish residence in Florida.

This interpretation is consistent with binding precedent. For example, in Sun Bank, the
Eleventh Circuit rejected efforts to assert personal jurisdiction over a defendant whose contacts

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with the forum "occurred not because (defendant) purposefully availed himself of the privilege

of conducting activities within Florida, nor even because (he) 'purposefully directed' his

activities at Florida residents. . . but because (defendant's) Massachusetts customer moved to
Florida, sought a loan from a Florida ban, and told that bank to call (defendant) in
Massachusetts." 926 F.2d at 1034. As in Sun Bank, Gainor's unilateral decision to seek

residency in Florida (and the corresponding tax benefits) cannot be imputed to Mar or used as a
basis to support jurisdiction over him.

Should Mar's contacts with Gainor after he moved to Florida be construed as
constitutionally sufficient minimum contacts, every accountant and lawyer who eases the

transition for a relocating client must fear the possibility of defending a lawsuit in a foreign

jurisdiction. This result, which would arise solely from a client's unilateral decision to relocate,
cannot be reconciled with the constitutional requirement that a defendant direct substantial and

purposeful acts toward the forum state. See Groome v. Feyh, 651 F. Supp. 249, 254 (S.D. Fla.
1986) ("(it) is the defendant's contacts and not the 'unilateral activity' of the plaintiff

that bear

significance") (citation omitted).

Courts have rejected jurisdiction over out-of-state professional service providers in
circumstances similar to these. See, e.g., Steinhilber v. Lamoree, 825 F. Supp. 1003, 1006 (S.D.

Fla. 1992) (court-ordered appearance at a mediation in Florida insufficient to constitute
minimum contacts for an out-of-state lawyer); Fleming & Weiss, P. C. v. First Am. Title Co., 580

So.2d 646 (FI. Ct. App. 1991) (insufficient minimum contacts when defendant "was a New York

law firm retained by a New York client to render a legal opinion pursuant to New York law" and
subsequently sent that opinion to a Florida resident).

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It would be a different matter if Gainor had asked, and Marx had agreed, to subsequently
prepare Gainor's Florida tax returns. Such post-relocation transformation of

the accountant-

client relationship and purposeful availment at Florida laws and standards would alter the

jurisdictional analysis. See Robinson v. Giarmarco & Bil, P.c., 74 F.3d 253 (11th Cir. 1996)
(where client relocated to Florida and requested that defendant out-of-state attorneys prepare a
wil and amended trust under Florida law, "(t)he nature of the professional

services rendered

was such that the defendants were fully aware that their actions or omissions would have a

substantial effect in Florida" and should have "reasonably anticipated the possibility of a suit
arising from conduct directed" toward the client); Keenan, 71 F. Supp. 2d at 1235 (minimum

contacts established where out-of-state attorneys "secured a co-counsel relationship" with a
Florida attorney and entered into a contingent fee contract written "in accordance with Florida

law"). But absent any allegations - or facts - to indicate that Mar ever prepared Gainor's
Florida returns or otherwise provided any advice to Gainor regarding his Florida tax obligations,

there is no basis to conclude that Marx purposefully availed himself of the benefits of Florida
law.
2. Exercising Jurisdiction Over Marx Would Offend Traditional Notions

of Fair Play and Substantial Justice.
When determining the contours of fair play and substantial justice, a court should
consider the "burden on the Defendant, the interests of

the forum State, and the plaintiffs

interest in obtaining relief." Keenan, 71 F. Supp. 2d at 1236. A court must also consider "the
interstate judicial system's interest in obtaining the most effcient resolution of controversies;

and the shared interest of the several States in fuhering fudamental substantive social
policies." Id. (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292 (1980)).

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Here, neither Gainor nor the state of Florida has a compelling interest in litigating the

claims against Marx in Florida. Gainor was a Georgia resident at the time the Gainor Strategy

was designed and implemented, and Gainor implemented the Strategy by sellng two Georgia

entities. Gainor used the strategy to shield roughly $70 milion of income eared in Georgia
from federal and Georgia state income tax. Although Marx had some minimal contact with
Gainor after he relocated to Florida, he did not provide professional services to a Florida resident

concerning assets located in Florida or income earned or to be reported in Florida. Compare

Robinson, 74 F.3d at 259. Nor wil Florida law apply to a dispute in which the alleged causes of
action arose in Georgia. Cf Wallack v. Worldwide Mach. Sales, 278 F. Supp. 2d 1358, 1371

(M.D. Fla. 2003) (granting motion to dismiss and noting that "Florida has little interest in this
dispute insofar as . . . the laws of Louisiana and/or Mississippi may control other legal issues

such as statute of limitations"). The only apparent interest that Gainor has in adjudicating this
dispute in Florida is one of

his own personal convenience, which arises from his tax-advantaged

decision to establish his residency in Florida.

Of course, Gainor's convenience is Marx's burden. Marx now faces the prospect of
extensive travel to defend a lawsuit in a foreign jurisdiction. This is significant for an individual
who neither resides nor conducts business in the state of Florida, and it has the potential to

impose undue burden on Mar, his family, and his accounting practice. (See Mar Decl., ~ 32.)
In light of the limited interest of both Gainor and Florida in pursuing this action in the cours of
Florida, the concepts of fair play and substantial justice further support the dismissal of this

action against Marx. The burdens on Marx surely "outweigh the convenience to the plaintiff of
suing in Florida merely because his residence is here." See Groome, 651 F. Supp. at 256.

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iv. CONCLUSION
For all of

the foregoing reasons, Marx respectfully requests that this Court dismiss
Civil Procedure 12(b)(2).

Plaintiffs' complaint against him pursuant to Federal Rule of

McDERMOTT WILL & EMERY LLP

By: sl: Michael G. Austin
Michael G. Austin (FBN 0457205) E-mail: maustinêlmwe.com 201 South Biscayne Blvd., Ste. 2200
Miami, Florida 33131

Tel: [phone] Fax: [phone]
Of Counsel:

Douglas E. Whitney Jocelyn D. Francoeur

McDERMOTT WILL & EMERY LLP
227 West Monroe Street

Chicago, Ilinois 60606
[phone] [phone] FAX
E-Mail: dwhitneyêlmwe.com

jfrancoeurêlmwe.com
Counsel for Michael Marx

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on May 22, 2007, I electronically fied the forgoing with the
Clerk of Court using the CM/ECF system, which automatically sends an electronic notification

to CM/ECF participants. The foregoing document was also served on those counselor parties

who are not authorized to receive electronically Notices of Electronic Filng identified on the
attached Service List via first-class U.S. maiL.

sl Michael G. Austin

Michael G. Austin

14
"

Case 1:06-cv-21748-JEM

Document 67

Entered on FLSD Docket 05/22/2007

Page 18 of 18

SERVICE LIST
Richard Benjamin Wilkes Attorneys at Law 600 S. Magnolia Ave, Suite 200 Tampa, Florida 33606 813-254-6060
Fax: [phone]
Attorney for Plaintif

Johathan E. Altman Aaron M. May MUNGER, TOLLES & OLSON LLP 355 S. Grand Avenue, 35th Floor
Los Angeles, California 9007 I

613-683-9 i 00
Fax: [phone]

and

Katherine Warhen Ezell
PODHURST ORSECK JOSEFSBERG, ET AL.

25 W. Flagler Street, Suite 800 City National Bank Bldg. Miami, Florida 33130-1780 305-358-2800
Fax: [phone]
Counsel

for Sidley, Austin, Brown & Wood, LLP

Stephen J. Anderson ANDERSON DAILEY LLP The Prominence Building 3475 Piedmont Road N.E., Suite 1820 Atlanta, Georgia 30305
404442 1800
Fax: [phone]

Attorney for Marc C. Klopfenstein
Bennett F alk

Bressler, Amery & Ross P.C.
2801 S.W. 149th Ave.

Miramar, Florida 33027 954-499-7979 Attorney for Merril Lynch & Co., RJ Ruble
MIA 322377-1.065784.0026