Gillier v. Inversiones 20 20 PR, LLC et al

Filing 90

ORDER granting 74 Plaintiff's Motion to Enforce Subpoenas. Signed by Magistrate Judge Edwin G. Torres on 1/8/2018. (js02)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-Civ-23155-SCOLA/TORRES
OLIVIER ROBERT GILLIER,
Plaintiff,
v.
SERVICIOS AGECOM, LLC,
INVERSIONES 20 20 PR, LLC,
RICHARD PEREZ, and
GEORGE BURGUILLOS,
Defendants.
______________________________________/
ORDER ON PLAINTIFF’S MOTION TO ENFORCE SUBPOENAS
This matter is before the Court on Oliver Robert Gillier’s (Plaintiff”) motion
to enforce two subpoenas on Fisher Island Marina and Fisher Island Club. [D.E.
74].

Richard Perez (“Mr. Perez”) and Inversiones 2020 PR, LLC (“Inversiones”)

(collectively, “Defendants”) responded to Plaintiff’s motion on December 28, 2017
[D.E. 79] to which Plaintiff replied later the same day.
Plaintiff’s motion is now ripe for disposition.

[D.E. 82].

Therefore,

After careful consideration of the

motion, response, reply, relevant authority, and for the reasons discussed below,
Plaintiff’s motion is GRANTED.
I.

BACKGROUND

Plaintiff filed this action on August 18, 2017 [D.E. 1] and alleges that on
September 4, 2015 he entered into an agreement for a one day excursion on a boat
1

named the Victoria. During the charter, Plaintiff slipped and sustained injuries
while climbing to the roof of the boat. Under the terms of the applicable charter
agreement, any lawsuit or claim that might arise therefrom was agreed to be
brought within the state and federal courts of Puerto Rico:
This Agreement shall be governed by and interpreted under the laws of
Puerto Rico, without regard to conflict of laws provisions. If any
lawsuit or claim is brought that arises out of or relates to this
Agreement or charter of the Vessel, jurisdiction and venue for such
suit shall be exclusively in the state or federal courts located in Puerto
Rico, to the exclusion of any other jurisdiction or venue to which any
lawsuit could otherwise have been brought.
[D.E. 80]. In light of the jurisdiction and venue clause, all four defendants in this
case filed motions to dismiss to force Plaintiff to pursue his claims in Puerto Rico.
Defendants also filed motions to dismiss for lack of personal jurisdiction because (1)
this case concerns an accident that occurred in Puerto Rico – meaning Plaintiff
must show that Defendants have sufficient ties to Florida to establish general
jurisdiction – and (2) both Defendants are Puerto Rico citizens without any alleged
ties to Florida.
On November 7 and 8, 2017, Plaintiff served his first requests for
interrogatories and documents on Defendants.

In a November 27, 2017 Order,

Judge Scola conducted a “preliminary peak” into Defendants’ motions to dismiss
and found that they “reveal[] a strong likelihood” that their motions may be
granted. [D.E. 60]. The Court granted a stay of general discovery and allowed for
limited jurisdictional discovery to proceed only against Mr. Perez and Inversiones.

2

II.

ANALYSIS

Plaintiff’s motion seeks the enforcement of two subpoenas that were served
on November 30, 2017 to Fisher Island Marina and Fisher Island Club.

At a

discovery hearing on December 8, 2017, Defendants requested that the Court quash
the subpoenas. The undersigned stayed the enforcement of the subpoenas “with
leave for Plaintiff to request the stay to be lifted as to them if the deponents deny
their continuous activity with respect to the [Victoria] in the State of Florida.” [D.E.
69].
Plaintiff argues that both Mr. Burguillos (who is a member of Inversiones)
and Mr. Perez testified that they were unsure on where the Victoria was located in
certain years, and that the subpoena directed at Fisher Island Marina and Fisher
Island Club may reveal the location of the boat and its ties to Florida. Plaintiff
further explains that Mr. Burguillos owned the Victoria while Mr. Perez operated
excursions of the boat to generate income.

As such, Plaintiff believes that the

relationship of the Victoria to the State of Florida is relevant to the question of
jurisdiction over Mr. Perez and Inversiones.
In response, Defendants contend that the uncontested record reveals that
neither Inversiones1 nor Mr. Perez2 own the Victoria. Rather, Defendants claim

Defendants claim that Inversiones is an inactive Puerto Rico company that
has never conducted business or other operations in the state of Florida. In
particular the company has allegedly never had (1) assets or employees in Florida,
(2) advertisements in Florida, or (3) any bank accounts.
1

3

that Servicios Agecome (a Florida company in which Inversiones and/or Mr. Perez
have no interest) owns the Victoria and that the Court should not allow the
subpoenas to be enforced because they cannot produce any relevant information
with respect to the pending jurisdictional motions. Because neither Mr. Perez nor
Inversiones own the Victoria, Defendants conclude that the boat’s ties with Florida
are irrelevant to the question of jurisdiction.
Jurisdiction comports with due process when it is consistent with the
Constitution and laws of the United States. “Considerations of due process require
that a non-resident defendant have certain minimum contacts3 with the forum, so
that the exercise of jurisdiction does not offend traditional notions of fair play and
substantial justice.” Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th
Cir. 2000) (citing International Shoe v. Washington, 326 U.S. 310, 316 (1945); Borg–
Warner Acceptance Corp. v. Lovett & Tharpe, Inc., 786 F.2d 1055, 1057 (11th Cir.
1996)).

However, the nature and quality of these contacts ordinarily “vary

depending upon whether the type of personal jurisdiction being asserted is specific
or general.” Consol. Dev. Corp., 216 F.3d at 1291.

Defendants suggest that Mr. Perez is a resident of Puerto Rico and does not
work or conduct business in Florida. He purportedly has no bank accounts in
Florida or any assets aside from an unregistered car that is stored in Florida.
2

The reason for minimum contacts is because it ensures fairness and the
expectation that “the defendant’s conduct and connection with the forum State [is]
such that he should reasonably anticipate being haled into court there.” World–
Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
3

4

Generally speaking, “[s]pecific jurisdiction arises out of a party’s activities in
the forum that are related to the cause of action alleged in the complaint.” Consol.
Dev. Corp., 216 F.3d at 1291 (citing Madara v. Hall, 916 F.2d 1510, 1516 n.7 (11th
Cir. 1990), Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414
nn.8-9 (1984)).

The amount of minimum contacts required to support specific

jurisdiction occurs when a defendant “purposefully avails itself of the privilege of
conducting activities within the forum State, thus invoking the benefits and
protections of its laws.” Hanson v. Denckla, 357 U.S. 235, 253 (1958).
On the other hand, general personal jurisdiction “arises from a defendant’s
contacts with the forum that are unrelated to the cause of action being litigated.”
Consol. Dev. Corp., 216 F.3d at 1292. “The due process requirements for general
personal jurisdiction are more stringent than for specific personal jurisdiction, and
require a showing of continuous and systematic general business contacts between
the defendant and the forum state.” Id. (citing Borg–Warner, 786 F.2d at 1057;
Hall, 466 U.S. at 412–13). General personal jurisdiction occurs in “instances in
which the continuous corporate operations within a state [are] so substantial and of
such a nature as to justify suit . . . on causes of action arising from dealings entirely
distinct from those activities.” International Shoe, 326 U.S. at 318. The Supreme
Court has established that general jurisdiction over corporations is mostly limited
to either the place of incorporation or its principal place of business. See Daimler
AG v. Bauman, 134 S. Ct. 746, 760 (2014) (“Those [two] affiliations have the virtue

5

of being unique—that is, each ordinarily indicates only one place—as well as easily
ascertainable.”).4
To determine if there is personal jurisdiction over Defendants, “a federal
court must [first] look to the long-arm statute of the state where it sits and the
cases that interpret that statute.” Johns v. Taramita, 132 F. Supp. 2d 1021, 1027
(S.D. Fla. 2001) (citing Associated Transport Line, Inc. v. Productos Fitosanitarios
Proficol El Carmen, S.A., 197 F.3d 1070, 1072–74 (11th Cir. 1999) (applying Florida
long-arm statute to determine whether personal jurisdiction exists over defendant
to suit in admiralty); Shaffer v. Tiffany Yachts, Inc., 1996 WL 870734, *2 (S.D. Fla.
Oct.31, 1996) (same)). In this case, the relevant long-arm statute is Florida. That
means that Defendants “can be subject to personal jurisdiction under Florida’s longarm statute in two ways: first, section 48.193(1)(a) lists acts that subject a
defendant to specific personal jurisdiction—that is, jurisdiction over suits that arise
out of or relate to a defendant’s contacts with Florida, Fla. Stat. § 48.193(1)(a); and
second, section 48.193(2) provides that Florida courts may exercise general personal
jurisdiction—that is, jurisdiction over any claims against a defendant, whether or
not they involve the defendant’s activities in Florida-if the defendant engages in
‘substantial and not isolated activity’ in Florida, id. § 48.193(2).” Tarasewicz v.

The Supreme Court has not held that only a corporation’s place of
incorporation or its principal place of business may suffice for general jurisdiction.
But, the Court has indicated that those two places are the two most common ways
of establishing general jurisdiction. See Daimler AG, 134 S. Ct. at 760 (“Goodyear
did not hold that a corporation may be subject to general jurisdiction only in a
forum where it is incorporated or has its principal place of business; it simply typed
those places paradigm all-purpose forums.”).
6
4

Royal Caribbean Cruises Ltd., 2015 WL 3970546, at *19 (S.D. Fla. June 30, 2015)
(quoting Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201, 1204 (11th Cir.
2015)).
After considering the arguments of both parties and the deposition testimony
submitted in support thereof, we are persuaded that the subpoenas directed at
Fisher Island Marina and Fisher Island Club could reveal relevant information on
whether personal jurisdiction exists over Mr. Perez and Inversiones. For example,
if Mr. Perez was operating a business of renting out the Victoria, it is certainly
possible that the information provided may establish that he has substantial ties
with South Florida. While Defendants believe that the information revealed will
ultimately be fruitless, that is not a persuasive reason to stay a subpoena and deny
Plaintiff the opportunity to determine whether personal jurisdiction might exist
over Mr. Perez or Inversiones. To be clear, the Court stayed the enforcement of the
subpoenas until Mr. Perez and Mr. Burguillos had an opportunity to testify in this
case with the caveat that – if they denied their continuous activity with respect to
the Victoria in the state of Florida – Plaintiff may have the opportunity to verify
those representations. Because Mr. Perez and Mr. Burguillos have denied their
involvement and ownership of the Victoria, Plaintiff’s motion to enforce the
subpoenas on Fisher Island Marina and Fisher Island Club is GRANTED.

7

III.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that
Plaintiff’s motion to enforce the subpoenas aimed at Fisher Island Marina and
Fisher Island Club is GRANTED. [D.E. 74]. Fisher Island Marina and Fisher
Island Club shall comply with the terms of the subpoena within fourteen (14) days
from the date of this Order.
DONE AND ORDERED in Chambers at Miami, Florida, this 8th day of
January, 2018.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge

8