EASYGROUP LTD v. SKYSCANNER, INC. et al
Filing
98
ORDER granting in part and denying in part 85 Motion to Dismiss Plaintiff's Amended Complaint for Lack of Personal Jurisdiction. Plaintiff's claims against Alfonso Avila Velandia are DISMISSED without prejudice for lack of jurisdiction. The Clerk is directed to TERMINATE Defendant, Alfonso Avila Velandia. Signed by Judge Cecilia M. Altonaga on 9/11/2020. See attached document for full details. (wc)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 20-20062-CIV-ALTONAGA/Goodman
EASYGROUP LTD.,
Plaintiff,
v.
SKYSCANNER, INC.; et al.,
Defendants.
_________________________/
ORDER
THIS CAUSE came before the Court on Defendants, Empresa Aerea de Servicios y
Facilitacion Logistica Integral, S.A. (“Easyfly”) and Alfonso Avila Velandia’s (“Avila[’s]”;
collectively, the “Defendants[’]”) Motion to Dismiss Plaintiff’s Amended Complaint for Lack of
Personal Jurisdiction [ECF No. 85], filed on July 16, 2020. Plaintiff, easyGroup Ltd., filed a
Response in Opposition [ECF No. 87] on July 30, 2020; to which Defendants filed a Reply [ECF
No. 95] on August 6, 2020. The Court has carefully considered the First Amended Complaint
(“Amended Complaint”) [ECF No. 79], the parties’ written submissions, and applicable law. For
the following reasons, the Motion is granted in part and denied in part.
I.
BACKGROUND
This action involves a trademark dispute between Plaintiff and Defendants. (See generally
Am. Compl.). Plaintiff is a corporation formed under the laws of the United Kingdom. (See id.
¶¶ 2, 11). Defendant, Easyfly, is a Colombian corporation with its principal place of business in
Bogota, Colombia. (See id. ¶ 6). Defendant, Avila, is a resident of Colombia. (See id. ¶ 7). The
CASE NO. 20-20062-CIV-ALTONAGA/Goodman
non-moving Defendants, Skyscanner, Inc. (“Skyscanner”), 1 Kayak Software Corporation
(“Kayak”), and Kiwi.com, Inc. (“Kiwi”), are Delaware corporations conducting business in
Florida. (See id. ¶¶ 3–5).
Plaintiff’s Trademarks. Plaintiff owns numerous trademark registrations worldwide
beginning with the prefix “easy” for a variety of goods and services. (Id. ¶ 12 (quotation marks
omitted)). Plaintiff owns 21 federal trademark registrations in the United States. (See id. ¶ 13).
Plaintiff and its licensees “spend hundreds of thousands of dollars every year promoting the ‘easy’
trademarks and building [Plaintiff’s] goodwill in the marks.” (Id. ¶ 17 (alteration added)).
Plaintiff’s trademark registrations include EASYJET, 2 easy, and EASYFLY (collectively, the
“Easy Marks”). (See id. ¶ 16).
Plaintiff uses the Easy Marks for air-travel-related services and enjoys a strong reputation,
due, in part, to its brand and airline “easyJet[.]” (Id. ¶ 19 (alteration added; quotation marks
omitted)). EasyJet is one of the largest and most well-known airlines in the world, operating in
over 30 countries and carrying approximately 100 million passengers a year. (See id.). The easyJet
website receives 200 million customer visits a year. (See id.).
Plaintiff’s Allegations. Defendant Easyfly is an airline established in 2006. (See id. ¶ 21).
Avila, who has several years of airline-industry experience, is one of the original founders of
Easyfly and is currently one of its three shareholders. (See id. ¶¶ 22, 24–25). Avila “named [the]
airline Easyfly with the intent of copying [Plaintiff’s] highly successful ‘easy’ family of marks in
general and EASYJET in particular.” (Id. ¶ 26 (alterations added)).
1
Plaintiff and Skyscanner stipulated to the dismissal of all claims asserted against Skyscanner. (See
generally Stip. of Dismissal with Prej. [ECF No. 97]).
2
Unless otherwise noted, quotations and references to Plaintiff’s and Easyfly’s trademarks in their written
submissions keep the original capitalization.
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Avila is Easyfly’s president and central decision maker. (See id. ¶ 7). Avila’s active role
includes: (1) representing Easyfly before its shareholders, authorities, and third parties; (2)
executing contracts and acts on behalf of Easyfly and its operations, including making significant
financial decisions for the company; (3) defining, adjusting, or terminating positions, departments,
and committees deemed necessary for Easyfly’s operations; (4) ensuring compliance with
Easyfly’s management systems; (5) defining policies, projections, and strategic guidelines for
Easyfly; and (6) complying with and enforcing the legal requirements, operations, and activities
of the airline. (See id. ¶ 27).
Until recently, Easyfly operated routes exclusively in Colombia. (See id. ¶ 28). Avila is
exploring markets outside of Colombia. (See id. ¶¶ 27–28). To further expand its business,
Easyfly markets and/or sells tickets on branded planes to Peru, Ecuador, and Panama. (See id. ¶
28). Easyfly sells tickets through various means, including its website. (See id. ¶ 29).
Easyfly’s website is accessible from anywhere in the world and has been significantly
accessed in the United States — and specifically, Florida. (See id.). The website purports to sell
tickets only in Colombia but accepts purchases from the United States. (See id. ¶ 37). Easyfly
uses Plaintiff’s EASYFLY marks on its website. (See id. ¶ 38). Easyfly’s website requires
Colombian identification but ignores fake numbers and accepts orders from U.S. customers. (See
id. ¶ 39). The United States “constitutes as [sic] country of origin for almost fifty percent of all
clicks to Easyfly’s website and accounts for the second largest source of income from online
purchases with significant sales purportedly coming from the United States, including Florida.”
(Id. ¶ 40; see also id. ¶ 29). Easyfly also identifies its service using an EF mark. (See id. ¶ 41).
Easyfly’s representatives have traveled numerous times to the United States for business
related to Easyfly, including to Florida, Arizona, and New York. (See id. ¶ 30). By way of
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example, from 2006 to 2017, Avila traveled consistently every three months to New York to meet
with a former Easyfly shareholder to discuss business. (See id. ¶ 34). This business-related travel
includes trips to Miami, Florida for the promotion, maintenance, development, and/or advertising
of travel services. (See id. ¶ 30). Even as recently as 2019, Avila met with Intrepid Aircraft
Maintenance, LLC’s representatives in Miami to discuss business. (See id.). Avila’s “continuous
contacts with the U.S. have taken him to Florida on several occasions for business related to
Easyfly[,]” during which Avila shopped for airplane parts and visited Avions de Transport
Regional GIE’s training facility. (Id. ¶ 34 (alteration added)).
Easyfly’s only training center for its airplanes in the entire western hemisphere is in Miami,
Florida. (See id. ¶ 31). Its pilots wear branded uniforms when they train at this center. (See id.).
Easyfly obtains a large portion of its supplies and parts for its airplanes in the United States. (See
id.). Easyfly’s airplane parts are repaired in Miami, and it receives shipments of supplies for its
airplanes from various U.S. entities. (See id.).
Easyfly maintains a bank account at the Miami branch of Bank of Bogota, through which
Easyfly pays its suppliers in connection with business and all U.S. invoices. (See id. ¶ 32). The
Miami bank is the only bank used by Easyfly outside of Colombia. (See id.). Avila has signing
control over Easyfly’s business bank account. (See id. ¶ 35). Moreover, Easyfly has availed itself
of and initiated legal action before the courts of the United States, particularly the Southern District
of Florida. (See id. ¶ 33); see also Empresa Aerea de Servicios y Facilitacion Logistica Integral,
S.A. v. Black Lion Aviation Corp., No. 10-cv-60112, Compl. [ECF No. 1] (S.D. Fla. Jan. 25, 2010).
Avila personally owns a condominium in Miami-Dade County, Florida. (See Am. Compl.
¶ 35). He spends time in Florida on pleasure trips and travels at least once a year to his vacation
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residence in Aventura, Florida. (See id.). Avila has personal bank accounts in Florida at First
Bank, where he maintains both a checking and savings account. (See id.).
Kayak and Skyscanner promote travel fares and direct consumers to ticket vendors. (See
id. ¶ 42). Kiwi is an online ticket reseller that (directly or indirectly) sells tickets to customers
forwarded by Kayak. (See id. ¶ 44). These parties “use marks which are infringing in the United
States to drive traffic to foreign carriers[.]” (Id. ¶ 46 (alteration added); see also id. ¶¶ 45, 47–52).
Easyfly benefits from the infringing activities of these online consolidators who are selling
tickets on the Easyfly airline while using the counterfeit EASYFLY trademarks in the United
States. (See id. ¶ 53). Easyfly “even issued ‘Black Friday’ specific promotions with the apparent
intent of luring United States customers through the consolidator sites or through direct purchase
on the [Easyfly] airline’s Colombian website.” (Id. ¶ 54 (alteration added); see also id., Ex. F,
Black Friday Advertisement [ECF No. 79-6] 2). 3
“Defendants’ EASYFLY mark is a counterfeit of [Plaintiff’s] EASYFLY registered mark
and is an infringement of [Plaintiff’s] other registered marks such as [easy] and EASYJET.” (Id.
¶ 67 (alterations added)). By using the EASYFLY mark in the United States, Defendants are
causing irreparable harm to the Easy Marks as well as to the entire “easy” family of marks. (Id. ¶
68 (quotation marks omitted)). Defendants’ use of the Easy Marks undermines Plaintiff’s goodwill
and consumers’ trust in Plaintiff’s services and marks. (See id. ¶ 69; see also id. ¶ 70).
The Amended Complaint. Plaintiff brings four claims against Defendants: Infringement
and Counterfeiting of Federally Registered Trademark in violation of the Lanham Act, 15 U.S.C.
section 1114, et seq. (Count II) (see Am. Compl. ¶¶ 82–91); Federal Unfair Competition and False
3
The Court uses the pagination generated by the electronic CM/ECF database, which appears in the headers
of all court filings. Citations to deposition testimony rely on the pagination and line numbering in the
original document.
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Designation of Origin in violation of section 43(a) of the Lanham Act, 15 U.S.C. section 1125(a)
(Count III) (see Am. Compl. ¶¶ 92–102); Trademark Dilution in violation of 15 U.S.C. section
1125(c) (Count IV) (see Am. Compl. ¶¶ 103–12); and Common Law Unfair Competition (Count
V) (see id. ¶¶ 113–22).
Defendants’ Motion and Additional Facts.
Defendants move for dismissal of the
Amended Complaint based on lack of personal jurisdiction, contending a court in Florida does not
have general jurisdiction over them, and that what limited contacts they have with this forum are
not sufficiently related to Plaintiff’s claims to confer specific jurisdiction. (See generally Mot.;
Reply). Defendants submit affidavits, deposition transcripts, and other evidence focusing on their
lack of contacts with the United States — and Florida — and supplying additional facts for the
Court to consider in determining whether general or specific jurisdiction exists over Defendants.
(See generally Mot., Ex[s]. A–M [ECF Nos. 85-1–85-13]; Reply, Ex[s]. N–P [ECF Nos. 95-1–953]).
Avila, Easyfly’s president, is a Colombian citizen residing in Bogota, Colombia. (See
Mot., Ex. A, Avila Decl. [ECF No. 85-1] ¶ 5). Easyfly, a regional passenger airline, is a Colombian
corporation with its principal place of business in Bogota, Colombia. (See id. ¶¶ 6, 9).
Easyfly has always conducted business entirely within Colombia. (See id. ¶ 7; see also id.
¶¶ 8–11). It neither transports passengers nor conducts operations outside of Colombia. (See id.
¶ 12). Easyfly “has never flown passengers, nor has it ever conducted any flight operations, nor
has it ever flown any of its aircraft for training purposes, outside the territory of Colombia.” (Id.
¶ 13). Easyfly does not presently intend to expand outside of Colombia. (See id. ¶ 14).
Easyfly employs approximately 1,300 people, all of whom are based in Colombia. (See id.
¶ 15). Easyfly has no officers, employees, agents, or representatives who reside or perform official
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duties in Florida or the United States. (See id.). It does not maintain a phone number in Florida;
nor does it have any addresses, licenses, liens, or real property in Florida or the United States. (See
id. ¶ 17). Easyfly does not advertise or market its services in Florida or the United States; nor has
it targeted or directed any marketing campaigns or materials to residents of Florida or the United
States. (See id. ¶ 16).
Easyfly’s EASYFLY mark is derived from an acronym of the full legal name of the airline:
“Empresa Aérea de Servicios Y Facilitación Logística Integral.” (Id. ¶ 19 (bold in original)).
Since 2007, Easyfly has used the trademark EASYFLY in Colombia to identify its products and
services to Colombian customers. (See id. ¶ 18; see also id. ¶ 21). In 2009, Easyfly secured
additional Colombian trademark registrations for its trademarks, including EASYFLY.COM.CO
and stylized representations of the EASYFLY mark. (See id. ¶¶ 21–24). According to Avila,
“none of [Easyfly’s] aircraft bearing the EASYFLY mark have ever landed in the United States or
in Florida for any reason whatsoever, even for maintenance, training, or in transit to Colombia or
any other country.” (Id. ¶ 20 (alteration added)).
Easyfly has no agreements, understandings, or any type of relationship, commercial or
otherwise, with Skyscanner, Kayak, or Kiwi. (See id. ¶ 29). Easyfly has neither requested nor
authorized these parties to market, advertise, promote, display, publicize, or otherwise
commercialize the EASYFLY mark or Easyfly’s goods or services. (See id. ¶ 30). In fact, when
Easyfly learns third parties attempt “to market, advertise, promote, display, publicize, or otherwise
commercialize any of [Easyfly’s] marks outside of the territories where [Easyfly] owns trademark
registrations, [Easyfly] has demanded that such third parties refrain from any kind of advertising,
promotion, or marketing of [Easyfly], its services, or its trademarks.” (Id. ¶ 31 (alterations added)).
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Avila is Easyfly’s president and plays an active role in the management of the airline. (See
id. ¶ 25). Due to the size of the company, however, Avila is not (and cannot be) responsible for
all aspects of Easyfly’s operation. (See id.). Avila is not responsible for Easyfly’s marketing
activities, which are carried out by the marketing and sales teams. (See id.). Avila is not a member
of the marketing and sales teams. (See id.). These teams “are responsible for [Easyfly’s] website,
social media presence and campaigns, preparation and dissemination of marketing campaigns and
materials, [Easyfly’s] corporate image, and [Easyfly’s] advertisements.” (Id. ¶ 26 (alterations
added)).
II.
STANDARD
Under Federal Rule of Civil Procedure 12(b)(2), a defendant may move to dismiss a claim
against it by asserting the defense of lack of personal jurisdiction. Because “[f]ederal courts
ordinarily follow state law in determining the bounds of their jurisdiction over persons[,]” Daimler
AG v. Bauman, 571 U.S. 117, 125 (2014) (alterations added; citing Fed. R. Civ. P. 4(k)(1)(A)), a
federal court sitting in Florida may properly exercise personal jurisdiction only if the requirements
of (1) Florida’s long-arm statute and (2) the Due Process Clause of the Fourteenth Amendment to
the United States Constitution are both satisfied, see Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209,
1214 (11th Cir. 1999) (citing Sculptchair, Inc. v. Century Arts Ltd., 94 F.3d 623, 626 (11th Cir.
1996)).
“There are two types of personal jurisdiction: specific and general.” Madara v. Hall, 916
F.2d 1510, 1516 n.7 (11th Cir. 1990). “General personal jurisdiction is based on a defendant’s
substantial activity in [a state] without regard to where the cause of action arose[,]” whereas
“specific personal jurisdiction authorizes jurisdiction over causes of action arising from or related
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to the defendant’s actions within [a state.]” Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d
1339, 1352 (11th Cir. 2013) (alterations added; citations omitted).
“A plaintiff seeking to obtain jurisdiction over a non-resident defendant initially need only
allege sufficient facts to make out a prima face case of jurisdiction.” Posner, 178 F.3d at 1214
(citing Electro Eng’g Prods. Co. v. Lewis, 352 So. 2d 862, 864 (Fla. 1977)). “The district court
must accept the facts alleged in the complaint as true, to the extent they are uncontroverted by the
defendant’s affidavits.” Peruyero v. Airbus S.A.S., 83 F. Supp. 3d 1283, 1286 (S.D. Fla. 2014)
(citing Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th Cir. 2000)).
If a plaintiff pleads sufficient facts to support the exercise of personal jurisdiction, the
burden shifts to the defendant to make a prima facie showing of the inapplicability of the state’s
long-arm statute. See Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th
Cir. 2000) (citation omitted). To the extent the defendant’s proffered evidence does not contradict
the plaintiff’s jurisdictional allegations, the plaintiff’s allegations must be accepted as true. See
Posner, 178 F.3d at 1215 (citing Madara, 916 F.2d at 1514). But where the defendant does
contradict the plaintiff’s allegations, the burden shifts back to the plaintiff, this time requiring the
plaintiff to prove — not merely allege — jurisdiction by affidavits, testimony, or other documents.
See id. at 1214–15; Future Tech., 218 F.3d at 1249 (citation omitted).
A party cannot meet its evidentiary burden by submitting affidavits asserting only
“conclusory assertions of ultimate fact[.]” Posner, 178 F.3d at 1215 (alteration added). Rather,
the affidavits must “set forth specific factual declarations within the affiant’s personal knowledge.”
Id. “The district court must construe all reasonable inferences in the light most favorable to the
plaintiff when dealing with conflicting evidence.” Peruyero, 83 F. Supp. 3d at 1287 (citing PVC
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Windoors, Inc. v. Babbitbay Beach Constr., N.V., 598 F.3d 802, 810 (11th Cir. 2010); other citation
omitted).
III.
ANALYSIS
Defendants assert the Court cannot exercise personal jurisdiction over them. (See generally
Mot.; Reply). According to Defendants, Easyfly and Avila both lack sufficient contacts with the
State of Florida to give rise to either general or specific jurisdiction. (See Mot. 5–21). The Court
first considers whether personal jurisdiction exists over Easyfly and then turns to Avila. 4
A. Easyfly
Plaintiff claims the Court has personal jurisdiction over Easyfly under sections
48.193(1)(a)(2), (2) and Federal Rule of Civil Procedure 4(k)(2). (See Resp. 10–21). As discussed,
the Court considers two questions when asked to exercise jurisdiction over a nonresident
defendant: “(1) whether personal jurisdiction exists over the nonresident defendant [] under
Florida’s long-arm statute, and (2) if so, whether that exercise of jurisdiction would violate the
Due Process Clause of the Fourteenth Amendment to the U.S. Constitution.” Mosseri, 736 F.3d
at 1350 (alteration added; citation omitted). The Court addresses Florida’s long-arm statute and
the Due Process Clause in turn.
Florida’s Long-Arm Statute. Florida’s long-arm statute recognizes two kinds of personal
jurisdiction over a nonresident defendant: specific jurisdiction and general jurisdiction. See Fla.
Stat. §§ 48.193(1)–(2). Because Plaintiff satisfies the long-arm statute’s requirements for specific
4
The Court analyzes Plaintiff’s causes of action simultaneously, as each cause of action sounds in tort and
all claims relate to the same conduct Defendants allegedly engaged in. See Macrotrend Cap. Grp. Inc. v.
Edwards, No. 18-cv-61327, 2019 WL 2106421, at *4 (S.D. Fla. Mar. 4, 2019) (analyzing the tort claims
simultaneously because the plaintiffs’ causes of action sounded in tort and all related to the same act
allegedly committed by the defendant).
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CASE NO. 20-20062-CIV-ALTONAGA/Goodman
jurisdiction over Easyfly, there is no need to engage in the general jurisdiction analysis. 5 See
Landmark Bank, N.A. v. Cmty. Choice Fin., Inc., No. 17-60974-Civ, 2017 WL 4310754, at *12
(S.D. Fla. Sept. 28, 2017).
Under Florida’s long-arm statute, a court may exercise specific personal jurisdiction over
a nonresident defendant who engaged in one of the enumerated acts listed under section
48.193(1)(a). See Wolf v. Celebrity Cruises, Inc., 683 F. App’x 786, 790 (11th Cir. 2017) (citing
Carmouche v. Tamborlee Mgmt., Inc., 789 F.3d 1201, 1203–04 (11th Cir. 2015)). The scope of
Florida’s long-arm statute is a question of Florida law. See Madara, 916 F.2d at 1514. Moreover,
“Florida’s long-arm statute is to be strictly construed.” Sculptchair, Inc, 94 F.3d at 627 (citation
omitted).
Section 48.193(1)(a)(2) states a nonresident defendant may be subject to the jurisdiction of
a court in Florida “for any cause of action arising from . . . [c]omitting a tortious act within this
state.” Fla. Stat. § 48.193(1)(a)(2) (alterations added). Plaintiff contends Easyfly has submitted
to Florida’s specific jurisdiction by committing tortious acts within the state. (See Resp. 10–13;
see also Am. Compl. ¶¶ 29, 37–40).
“Under the committing a tortious act prong, a court may assert jurisdiction over a
nonresident defendant who commits a tort outside of the state that causes injury inside the state,
meaning the defendant’s physical presence is not required if the tort causes an injury in Florida.”
Sutherland v. SATO Glob. Sols., Inc., No. 17-cv-61596, 2018 WL 3109627, at *5 (S.D. Fla. Apr.
10, 2018) (alteration adopted; quotation marks and citation omitted). “It is well settled in the
Eleventh Circuit that trademark claims under the Lanham Act allege tortious acts for long-arm
5
Likewise, “[b]ecause jurisdiction [] is satisfied under Florida’s long-arm statute, the Court need not reach
the question of federal long-arm jurisdiction allowed under Federal Rule[] of Civil Procedure 4(k)(2).”
KMG Int’l, BV v. Fun Light Amusements, SRO, No. 8:19-cv-00333, 2019 WL 3343662, at *3 n.1 (M.D.
Fla. July 25, 2019) (alterations added; citation omitted).
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purposes[.]” PG Creative Inc. v. Affirm Agency, LLC, No. 18-cv-24299, 2019 WL 5684219, at *4
(S.D. Fla. Oct. 31, 2019) (alteration added; citation omitted); see also Hard Candy, LLC v. Hard
Candy Fitness, LLC, 106 F. Supp. 3d 1231, 1239 (S.D. Fla. 2015) (recognizing trademark
infringement under 15 U.S.C. section 1114, false designation of origin under 15 U.S.C. section
1125(a), trademark dilution under 15 U.S.C. section 1125(c), and common law unfair competition
involve “tortious acts” under the long-arm statute (quotation marks omitted; collecting cases)).
Plaintiff alleges (1) “Easyfly sells tickets through various means, including its website
which is accessible from anywhere in the world[,]” including Florida; (2) Easyfly uses the
infringing EASYFLY trademarks on its website; and (3) the United States “constitutes as [sic]
country of origin for almost fifty percent of all clicks to Easyfly’s website and accounts for the
second largest source of income from online purchases with significant sales purportedly coming
from the United States, including Florida.” (Am. Compl. ¶¶ 29, 37–40 (alteration added)). Easyfly
insists these allegations are insufficient for Plaintiff “to meet its burden of establishing specific
jurisdiction under Florida’s long-arm statute[,]” as “no injury occurred in this state and Plaintiff
has pled no basis for the underlying tort upon which jurisdiction is premised[.]” (Reply 5
(alterations added)). 6 The Court disagrees.
Fortunately, the Eleventh Circuit has weighed in on the reach of section 48.193(1)(a)(2) in
suits involving trademark infringement, nonresident defendants, and publicly-accessible websites.
6
In its Motion, Easyfly advances numerous arguments highlighting its seemingly minimal contacts with
the United States and Florida. Easyfly, however, neither specifically discusses the enumerated acts listed
under Florida Statute section 48.193(1)(a) nor cites any authority supporting the proposition it did not
commit a tortious act within the state for purposes of the long-arm statute. (See Mot. 6–11). Easyfly’s
specific jurisdiction arguments are thus largely irrelevant to the Court’s discussion of section
48.193(1)(a)(2). By way of example, Easyfly expends considerable effort discussing its lack of business
contacts and activities in Florida (see Mot. 1–3, 5–10); yet, “a defendant cannot defeat personal jurisdiction
based on tortious conduct by filing an affidavit that attests that the defendant has not conducted business in
Florida and does not have any business contacts in the State.” Elite Flower Servs., Inc. v. Elite Floral &
Produce, LLC, No. 13-cv-21212, 2013 WL 12095134, at *3 (S.D. Fla. June 18, 2013) (citations omitted).
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In Licciardello v. Lovelady, 544 F.3d 1280 (11th Cir. 2008), the plaintiff asserted trademark
infringement claims relating to defendant’s unauthorized use of the plaintiff’s trademarked name,
photograph, and apparent endorsement of the defendant on a website “accessible to the public in
Florida[.]” Id. at 1282 (alteration added). The defendant lived in Tennessee and created the
website in Tennessee. See id. at 1282–83. The Eleventh Circuit concluded the plaintiff’s
allegations satisfied section 48.193(1)(a)(2)’s requirements for specific jurisdiction. See id. 1283–
84. The court reasoned: “We need not decide whether trademark injury necessarily occurs where
the owner of the mark resides, as the Florida district courts have held, because in this case the
alleged infringement clearly also occurred in Florida by virtue of the website’s accessibility in
Florida.” Id. at 1283 (footnote call number omitted). Said differently, “under the ‘tortious acts’
provision in [section] 48.193(1)(a)(2), a trademark infringement on an Internet website causes
injury and occurs in Florida ‘by virtue of the website’s accessibility in Florida.’” Mosseri, 736
F.3d at 1353–54 (alteration added; quoting Lovelady, 544 F.3d at 1283).
Mosseri, 736 F.3d 1339, is instructive. In Mosseri, the plaintiff asserted trademark
infringement claims against the nonresident defendant. See id. at 1343. As to personal jurisdiction,
the plaintiff alleged the following tortious acts: (1) the defendant’s “operation of fully-interactive
Internet websites on which Florida customers could view, buy, and pay for products bearing
counterfeits of the [plaintiff’s] trademarks”; and (2) the defendant sold and shipped counterfeit
goods into Florida. Id. at 1348 (alteration added; quotation marks omitted). Applying Lovelady,
the court first reaffirmed that the defendant’s “trademark infringement caused injury and thus
occurred in Florida by virtue of the website’s accessibility in Florida.” Id. at 1354 (quotation
marks and citation omitted). The court then went on to discuss “other tortious acts within Florida”
— namely, the defendant’s sales on the Internet of infringing products to Florida consumers. Id.
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The court found the exercise of specific personal jurisdiction appropriate because the “trademark
infringing goods were not only accessible on the website, but were sold to Florida customers
through that website.” Id.
Plaintiff’s allegations of Easyfly’s trademark infringement via a Florida-accessible website
and significant ticket sales through use of the infringing trademarks to Florida customers satisfy
section 48.193(1)(a)(2)’s requirements for specific personal jurisdiction over Easyfly. 7 (See Am.
Compl. ¶¶ 29, 37–40). This conclusion is consistent with the Eleventh Circuit’s decisions in
Lovelady and Mosseri. 8 See also Dohler S.A. v. Guru, No. 16-23137-Civ, 2017 WL 4621098, at
*5 (S.D. Fla. Oct. 16, 2017) (finding the plaintiffs satisfied the long-arm statute where they alleged
the defendants sold counterfeit products by virtue of a website accessible in Florida); Kumbrink v.
Hygenic Corp., No. 15-Civ-23530, 2016 WL 5369334, at *2 (S.D. Fla. Sept. 26, 2016) (“[The
7
In addition to those allegations, Plaintiff cites to Easyfly’s own Google Analytics Reports showing the
significant access of Easyfly’s website by users in the United States, including Florida, and detailing the
number of ticket sales to U.S. and Florida customers. (See Resp. 5; see also Not. of Filing . . . (“Not. of
Filing”) [ECF No. 93], Ex[s]. E–F [ECF Nos. 93-1, 93-2]). By way of example, Plaintiff emphasizes the
fact Easyfly “sold 17,745 tickets to U.S. customers from May 15, 2015 to May 14, 2020 at a significant
total cost[,]” most of which “were sold to consumers in Florida (5,355 of 17,745 tickets).” (Resp. 5
(alteration added; emphasis omitted); see also generally Not. of Filing, Ex[s]. E–F).
Undeterred, Easyfly contends its website was visited by an “internet bot or web crawler” (Mot. 9) and
that Plaintiff has “offered no evidence that those individuals actually were in Florida” (Reply 4). (See also
Mot. 9 (citing Mot., Ex. G, Herrera Dep. Tr. [ECF No. 85-7] 85:12–16 (stating deponent does not know if
the users are living, dead, or if they are robots)); but see Not. of Filing Redacted Versions . . . [ECF No.
90], Ex. H, Herrera Dep. Tr. [ECF No. 90-2] 88:9–21 (admitting robots do not generate ticket sales and that
deponent is not an Internet expert)). Easyfly’s cited testimony and vague attorney assertions do not militate
against exercising jurisdiction under section 48.193(1)(a)(2). Indeed, Easyfly offers no meaningful rebuttal
that its website not only was accessible in Florida, but also was used by Florida customers to purchase
airline tickets bearing the allegedly infringing marks. (See Resp. 12–13); see also Mosseri, 736 F.3d at
1354.
8
In a cursory and unpersuasive footnote, Easyfly contends Lovelady and Mosseri are inapposite because
the plaintiffs in those cases were either Florida residents or Florida-retail-outlet operators. (See Reply 3
n.1). Easyfly offers no authority supporting the proposition Lovelady and Mosseri apply only to Florida
residents and retail-outlet owners — in fact, Easyfly’s specific jurisdiction contentions do not cite any
authority supporting Easyfly’s tenuous position section 48.193(1)(a)(2) is not satisfied. (See Reply 3–4;
Mot. 6–11).
14
CASE NO. 20-20062-CIV-ALTONAGA/Goodman
defendant’s] website was not only accessible in Florida, but Florida residents were able to purchase
the alleged infringing product on it. Therefore, [the defendant’s] alleged tort caused injury inside
Florida, and this Court has long-arm jurisdiction pursuant to Fl[orida] Stat[ute] [section]
48.193(1)(a)(2).” (alterations added; citation omitted)); Evans v. Andy & Evan Indus., Inc., No.
15-cv-61013, 2016 WL 8787062, at *3 (S.D. Fla. July 15, 2016) (agreeing with the plaintiffs that
accessibility in Florida of the defendant’s website featuring infringing products constituted a
tortious act causing injury in Florida); Cross Match Techs., Inc. v. Crossresolve, LLC, No. 1581310-Civ, 2016 WL 3216541, at *4 (S.D. Fla. June 10, 2016) (“Because [the plaintiff] establishes
that [the defendant] maintains a website accessible in Florida that displays the allegedly infringing
mark, [the plaintiff] makes out a prima facie case of personal jurisdiction under the long-arm
statute.” (alterations added; citations omitted)).
Easyfly raises numerous arguments in its Reply, none of which is availing or supported by
any controlling (or persuasive) authority. (See Reply 3–5). The Court explains.
Easyfly contends Florida and U.S. ticket sales “represent less than 0.1% and 0.3%
respectively[] of total sales” and such “minimal sales . . . [are] insufficient to establish any injury
in Florida.” (Id. 4 (alterations added)). Easyfly’s contentions miss the mark. “The ‘percentage of
overall revenue gleaned from Florida clients’ is relevant to an analysis under Florida Statute
section 48.193(1)(a)(1) (providing for specific personal jurisdiction where a cause of action arises
from a defendant’s operation of a business or business venture in the state), not the subsection at
issue, (1)(a)(2).” 9 Am. Airlines, Inc. v. Despegar.com USA, Inc., No. 13-22773-Civ, 2014 WL
9
Tellingly, Carmel and Co v. Silverfish, LLC, No. 1:12-cv-21328, 2013 WL 1177857 (S.D. Fla. Mar. 21,
2013), on which Easyfly relies, discusses the percentage of the defendant’s sales in the context of the
“conducting business” prong under section 48.193(1)(a)(1), not the “tortious act” prong of section
48.193(1)(a)(2). Id. at *3–4 (quotation marks omitted); (see also Reply 4).
15
CASE NO. 20-20062-CIV-ALTONAGA/Goodman
11880999, at *6 (S.D. Fla. May 14, 2014) (quoting Horizon Aggressive Growth, L.P. v. RothsteinKass, P.A., 421 F.3d 1162, 1167 (11th Cir. 2005)).
Easyfly next argues “it is not possible for [Easyfly’s] alleged actions to cause an injury” in
Florida because “Plaintiff does not have any presence in Florida[.]” (Reply 4 (alterations added)).
Easyfly’s argument, however, ignores Lovelady and Mosseri. See Lovelady, 544 F.3d at 1283
(stating trademark infringement on a website causes injury in Florida “by virtue of the website’s
accessibility in Florida.” (emphasis added; footnote call number omitted)); Mosseri, 736 F.3d at
1354 (concluding the defendant’s “tortious acts . . . caused injury in Florida and thus occurred
there because [the defendant’s] trademark infringing goods were not only accessible on the
website, but were sold to Florida customers through that website.” (alterations and emphasis
added)).
Easyfly further asserts Plaintiff fails to “recite the necessary elements” of its tort claims
and insists “no tort of infringement [] occurred within this state.” (Reply 4 (alteration added)).
Easyfly is mistaken for two reasons.
First, Plaintiff pleads the essential elements of its claims against Easyfly and, as discussed,
alleges enough facts to support personal jurisdiction under the long-arm statute. (Compare Am.
Compl. ¶¶ 12–16, 83–89 (Count II – Trademark Infringement and Counterfeiting); id. ¶¶ 12–16,
93–99 (Count III – Federal Unfair Competition and False Designation of Origin); id. ¶¶ 104–08
(Count IV – Trademark Dilution); and id. ¶¶ 12–16, 114–20 (Count V – Common Law Unfair
Competition)), with Planetary Motion, Inc. v. Techsplosion, Inc., 261 F.3d 1188, 1193 (11th Cir.
2001) (listing elements of trademark infringement claim (citations and footnote call number
omitted)); Custom Mfg. & Eng’g, Inc. v. Midway Servs., Inc., 508 F.3d 641, 647–48 (11th Cir.
2007) (stating prima facie test for false-designation-of-origin claim (citations omitted)); Brain
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Pharma, LLC v. Scalini, 858 F. Supp. 2d 1349, 1356–57 (S.D. Fla. 2012) (discussing elements of
trademark dilution claim (citations omitted)); and Drew Estate Holding Co., LLC v. Fantasia
Distrib., Inc., No. 11-21900-Civ, 2012 WL 234105, at *3 (S.D. Fla. Jan. 24, 2012) (providing legal
standard for common-law-unfair-competition claim (citations omitted)).
Second, Easyfly’s insistence that “no tort of infringement [] occurred within this state”
improperly injects a merits inquiry into the Court’s jurisdictional analysis. (Reply 4 (alteration
added)). “The appropriate inquiry [for personal jurisdiction to attach] is whether the tort as alleged
occurred in Florida, and not whether the alleged tort actually occurred.” Machtinger v. Inertial
Airline Servs., Inc., 937 So. 2d 730, 734 (Fla. 3d DCA 2006) (alteration added; citation omitted);
see also Brennan v. Roman Catholic Diocese of Syracuse N.Y., Inc., 322 F. App’x 852, 855 (11th
Cir. 2009) (“[A] motion to dismiss a tort claim for lack of personal jurisdiction under Florida’s
Long-Arm Statute does not require a full-scale inquiry into whether the defendant committed a
tort. . . . [W]e can construe the facts in the light most favorable to the plaintiff and hold that the
alleged claim satisfies Florida’s Long-Arm Statute.” (alterations added; citing Future Tech., 218
F.3d at 1250)).
In short, Easyfly allegedly committed tortious acts in Florida that caused injury in Florida
“by virtue of [its] website’s accessibility in Florida[,]” Lovelady, 544 F.3d at 1283 (alterations
added; footnote call number omitted); and Easyfly has sold airline tickets bearing the infringing
trademarks to thousands of Florida customers, see Mosseri, 736 F.3d at 1354. (See also Am.
Compl ¶¶ 29, 37–40; Resp. 5, 12). The requirements for specific jurisdiction are amply satisfied
under Florida Statute section 48.193(1)(a)(2).
Due Process. Plaintiff must also show the exercise of jurisdiction over Easyfly would not
offend due process. See Madara, 916 F.2d at 1514 (citations omitted). To comport with due
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CASE NO. 20-20062-CIV-ALTONAGA/Goodman
process, the nonresident defendant must be shown to have established “certain minimum contacts
with the forum such that the maintenance of the suit does not offend traditional notions of fair play
and substantial justice.” Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1220 (11th Cir.
2009) (quotation marks and citations omitted).
In specific jurisdiction cases, the due process inquiry is whether: (1) “the plaintiff’s claims
‘arise out of or relate to’ at least one of the defendant’s contacts with the forum”; (2) “the
nonresident defendant ‘purposefully availed’ [it]self of the privilege of conducting activities within
the forum state, thus invoking the benefit of the forum state’s laws”; and (3) “the exercise of
personal jurisdiction comports with ‘traditional notions of fair play and substantial justice.’”
Mosseri, 736 F.3d at 1355 (alteration added; citations omitted)). “The plaintiff bears the burden
of establishing the first two prongs, and if the plaintiff does so, a defendant must make a
compelling case that the exercise of jurisdiction would violate traditional notions of fair play and
substantial justice.” Id. (quotations marks and citation omitted).
“Arising out of” or Relatedness. “A fundamental element of the specific jurisdiction
calculus is that plaintiff’s claim must arise out of or relate to at least one of the defendant’s contacts
with the forum.” Id. (alteration adopted; quotation marks and citations omitted). The first prong
“focus[es] on the direct causal relationship between the defendant, the forum, and the litigation.”
Sinclair & Wilde, Ltd. v. TWA Int’l, Inc., No. 20-20304-Civ, 2020 WL 1929262, at *3 (S.D. Fla.
Apr. 21, 2020) (alteration added; quotation marks and citation omitted). The Court looks to the
“affiliation between the forum and the underlying controversy, focusing on any activity or
occurrence that took place in the forum State.” Waite v. All Acquisition Corp., 901 F.3d 1307,
1314 (11th Cir. 2018) (alterations adopted; quotation marks and citations omitted). A “tort ‘arises
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CASE NO. 20-20062-CIV-ALTONAGA/Goodman
out of or relates to’ the defendant’s activity in a state only if the activity is a ‘but-for’ cause of the
tort.” Id. (alterations adopted; citation omitted).
Plaintiff satisfies the first prong. Plaintiff’s trademark claims arise out of or relate to at
least one of Easyfly’s contacts with Florida. Easyfly operates a website accessible in the forum
that displays Plaintiff’s trademarks and has made over 5,000 direct sales to Florida consumers
using allegedly infringing trademarks. (See Am. Compl. ¶¶ 29, 37–40; Not. of Filing, Ex. E 2;
Not. of Filing, Ex. F 2). Easyfly accepts payment from Florida customers following its use of the
infringing trademarks on its Florida-accessible website. (See Not. of Filing, Ex. F. 2). These
contacts are but-for causes of Plaintiff’s injury in that had Easyfly not sold its services using
infringing marks to Florida customers via a Florida-accessible website, Plaintiff’s injury would
not have occurred.
Accordingly, there is a direct causal relationship between at least one of Easyfly’s contacts,
Florida, and Plaintiff’s trademark claims. See Mosseri, 736 F.3d at 1356 (finding the first prong
satisfied where the defendant’s ties to Florida included advertising, selling, and distributing the
allegedly infringing goods into the state and accepting payment from Florida customers); Elan
Int’l, Inc. v. Sen Collection, Inc., No. 15-23620-Civ, 2017 WL 346622, at *5 (S.D. Fla. Jan. 24,
2017) (concluding a direct causal relationship existed between the defendant, Florida, and the
plaintiff’s trademark claims where the defendant’s ties to this forum included selling and shipping
infringing goods in Florida and accepting payment from Florida clients); Evans, 2016 WL
8787062, at *4 (“The Court is satisfied . . . the first prong of the three-pronged due process analysis
is fulfilled because plaintiff’s claims do arise out of or relate to at least one of its Florida contacts
— the Florida-accessible website.” (alteration added)); Weingartner v. Draper James, LLC, No.
15-81581-Civ, 2016 WL 8678544, at *5 (S.D. Fla. Oct. 4, 2016) (finding the first requirement was
19
CASE NO. 20-20062-CIV-ALTONAGA/Goodman
“easily satisfied” where the record demonstrated that the defendant’s contacts with Florida
involved selling and distributing infringing goods in Florida).
Purposeful Availment. In intentional tort cases, the Court may assess the purposeful
availment prong under two independent inquiries: the effects test, see Calder v. Jones, 465 U.S.
783, 789 (1984), and the traditional minimum contacts test, see Keeton v. Hustler Magazine, Inc.,
465 U.S. 770, 779–80 (1984). See Mosseri, 736 F.3d at 1356–57. Easyfly insists Plaintiff cannot
satisfy either test. (See Mot. 17–19; Reply 8–10). Because the Court finds Plaintiff has shown
purposeful availment under the traditional minimum contacts test, it does not analyze the effects
test. See Mosseri, 736 F.3d at 1357 (footnote call number omitted).
Under the traditional minimum contacts test for purposeful availment, the Court assesses
the nonresident defendant’s contacts with the forum state and asks whether those contacts: “(1) are
related to the plaintiff’s cause of action; (2) involve some act by which the defendant purposefully
availed [it]self of the privileges of doing business within the forum; and (3) are such that the
defendant should reasonably anticipate being haled into court in the forum.” Id. (alteration added;
citation omitted). In conducting this analysis, the Court “identif[ies] all contacts between a
nonresident defendant and a forum state and ask[s] whether, individually or collectively, those
contacts satisfy these criteria.” Id. (alterations added; citation omitted).
The “purposeful availment requirement ensures that a defendant will not be haled into a
jurisdiction solely as a result of random, fortuitous, or attenuated contacts[.]” Burger King Corp.
v. Rudzewicz, 471 U.S. 462, 475 (1985) (alteration added; quotation marks and citations omitted).
“Mere operation of an interactive website alone does not give rise to purposeful availment
anywhere the website can be accessed, but an accessible website, in conjunction with other
contacts that directly give rise to the cause of action, may be sufficient.” Rosenstock v. Sollars,
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CASE NO. 20-20062-CIV-ALTONAGA/Goodman
No. 17-cv-81127, 2018 WL 8367072, at *3 (S.D. Fla. Jan. 24, 2018) (alterations adopted;
quotation marks, citation, and emphasis omitted).
Easyfly purposefully availed itself of the Florida forum in such a way that it could
reasonably anticipate being haled into a Florida court. As noted by Plaintiff: (1) Easyfly had a
publicly-accessible website from which customers could purchase Easyfly’s services in the United
States and Florida; (2) 49,412 Florida users 10 accessed Easyfly’s website between May 2015 and
May 2020; (3) Easyfly received over 6 billion Colombian pesos from U.S. consumers, 1.86 billion
of which were paid by Florida consumers, between May 2015 and May 2020; (4) Easyfly made
direct sales of 5,355 tickets to Florida consumers during the same five-year period; and (5)
Easyfly’s branded aircraft operated through Miami International Airport on July 30 and 31, 2020.
(See Resp. 5–6, 16; see also Am. Compl. ¶¶ 29, 37–40; Not. of Filing, Ex. E 2; Not. of Filing, Ex.
F 2; Not. of Suppl. Auth. . . . [ECF No. 96] 3–4). Because of its Florida-specific sales, Floridaaccessible website, and use of branded aircraft within Florida, Easyfly’s collective contacts with
Florida were not random, fortuitous, or attenuated. 11 Succinctly stated, purposeful availment for
due process is shown here.
Given the foregoing, it is rather remarkable that Easyfly nevertheless maintains its
“creation and use of a Colombian website, displaying its duly registered Colombian trademarks,
10
Easyfly contends “the overwhelming majority” of U.S. visits to its website were made by “bots or web
crawlers[.]” (Mot. 8–9 (alteration added)). Easyfly explains “the median duration of a visit to the website
from Colombia is 3 minutes and 33 seconds, [and] the median duration of a visit from the United States is
only 33 seconds[,]” concluding “[s]uch [] short duration is strongly indicative of visits from web crawlers
or bots, not live users.” (Id. 9 (alterations added)). Indeed. Accepting these statistical pronouncements, it
is curious that Easyfly conveniently ignores the median duration of a visit from Florida is 4 minutes and
44 seconds, which, according to Easyfly’s reasoning, is “strongly indicative of visits from . . . live users.”
(Id. (alteration added); see also Not. of Filing, Ex. F 2).
11
As discussed under prong one, Plaintiff’s causes of action derive directly from these Easyfly contacts
with Florida. (See generally Am. Compl.).
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CASE NO. 20-20062-CIV-ALTONAGA/Goodman
entirely in Spanish, with no contact information for the United States, coupled with a lack of any
promotion or advertisements in the United States, is [sic] woefully inadequate to support
purposeful availment of Florida as a forum[.]” (Mot. 18 (alteration added); see also Reply 8–9).
The Court disagrees.
Even if Easyfly did not “direct[] any actions at Florida, or even the United States as a
whole[,]” as it insists (Mot. 18 (alterations added)), Easyfly purposefully availed itself of the
privileges of conducting business in Florida. Easyfly clearly does business over the Internet in the
United States and Florida; is willing to (and does) directly sell its services to Florida customers;
has not limited its sales to any region or area; and accepts payment from Florida customers. See
Kumbrink, 2016 WL 5369334, at *3 (finding the defendant “purposefully availed itself of the
privileges of doing business within Florida” because “[i]t operated a fully interactive website
accessible in Florida and processed sales to Florida customers.” (alteration added; citation
omitted)); Dohler S.A., 2017 WL 4621098, at *6 (“Sellers cannot expect to avail themselves of the
benefits of the internet-created world market that they purposefully exploit and profit from without
accepting the concomitant legal responsibilities that such an expanded market may bring with it.”
(quotation marks and citation omitted)); see also Savvy Rest, Inc. v. Sleeping Organic, LLC, No.
3:18-cv-00030, 2019 WL 1435838, at *5 (W.D. Va. Mar. 29, 2019) (stating even if the defendant
“did not specifically target [the forum’s] customers, it purposefully availed itself of the privilege
of conducting business in the state” by using its website to sell products to customers in that forum
(alteration added; citations omitted)).
In sum, Plaintiff satisfies the purposeful availment prong. See Mosseri, 736 F.3d at 1357–
58 (concluding the defendant purposefully availed himself of a Florida forum where he operated
a Florida-accessible website, sold and distributed infringing products through the website to
22
CASE NO. 20-20062-CIV-ALTONAGA/Goodman
Florida customers, and the causes of action derived directly from those contacts); Atmos Nation,
LLC v. All Fun Gifts Distrib., Inc., No. 16-60821-Civ, 2017 WL 5171174, at *5 (S.D. Fla. July 18,
2017) (finding the purposeful availment prong satisfied where the defendant sold products that
infringed on the plaintiff’s patent rights through its website); Hartoy Inc. v. Thompson, No. 0280454-Civ, 2003 WL 21468079, at *5 (S.D. Fla. Jan. 29, 2003) (exercising personal jurisdiction
over the defendant despite the fact its Florida sales only amounted to $325.00 because the
defendant’s website invited consumers to transact business and consumers availed themselves of
that purchasing opportunity).
Fair Play and Substantial Justice. Because Plaintiff has carried its burden of establishing
the first two prongs, the Court considers whether Easyfly “ma[kes] a compelling case that the
exercise of jurisdiction [] violate[s] traditional notions of fair play and substantial justice.” Waite,
901 F.3d at 1313 (alterations added; quotation marks and citation omitted). The “fair play and
substantial justice factor is to be applied sparingly.” KMG Int’l, BV, 2019 WL 3343662, at *6
(quotation marks and citation omitted).
The Court looks to the following factors in evaluating whether exercising jurisdiction
comports with fair play and substantial justice: the burden on the defendant, the forum state’s
interest in adjudicating the dispute, the plaintiff’s interest in obtaining convenient and effective
relief, the interstate judicial system’s interest in obtaining the most efficient resolution of
controversies, and the shared interest of several states in advancing fundamental substantive social
policies. See Burger King Corp., 471 U.S. at 476–77 (citations omitted).
Easyfly contends “exercising personal jurisdiction over [it] would not meet the minimum
requirements of ‘fair play and substantial justice.’” (Mot. 18 (alteration added)). The Court
disagrees — exercising personal jurisdiction over Easyfly in this forum comports with fair play
23
CASE NO. 20-20062-CIV-ALTONAGA/Goodman
and substantial justice. Easyfly’s arguments fail to make a compelling case suggesting the
contrary.
First, the burden of defending this lawsuit in Florida is not as substantial as Easyfly insists.
Easyfly’s representatives have traveled to the United States and this District on numerous
occasions. (See Resp. 6–8, 18–19). Easyfly seeks business in the United States and Florida and
has significant business dealings in Florida and, in particular, this District. (See id.). “[M]odern
methods of transportation and communication have significantly reduced the burden on foreign
nationals who are forced to litigate in the United States[.]” Maurer Rides USA, Inc. v. Beijing
Shibaolai Amusement Equip. Co., Ltd., No. 6:10-cv-1718, 2014 WL 3687098, at *5 (M.D. Fla.
July 24, 2014) (alterations added; quotation marks and citation omitted). Easyfly has filed suit in
this District, made court appearances, and even obtained a final judgment in its favor. See
generally Black Lion Aviation Corp., No. 10-cv-60112; see also Paris v. Levinson, No. 8:19-cv00423, 2019 WL 2995957, at *6 (M.D. Fla. July 9, 2019) (finding the defendants failed to
demonstrate a substantial burden litigating in the chosen forum in part because one of the
defendants had filed suit in that district and made court appearances).
Second, even though Plaintiff is not a Florida entity, Florida “has a legitimate interest in
providing redress for persons inside or outside the state who are injured by tortious activity
emanating from this state.” Int’l Underwriters AG v. Triple I: Int’l Invs., Inc., No. 06-80966-Civ,
2007 WL 9701852, at *6 (S.D. Fla. May 30, 2007).
Third, “Plaintiff has a strong interest in obtaining convenient and effective relief in order
to protect its company’s reputation, resolve any consumer confusion, and maintain the value of its
trademark[s].” Spectrum Image, Inc. v. Makozy, No. 19-21702-Civ, 2019 WL 3997164, at *3
(S.D. Fla. Aug. 23, 2019) (alteration added; citation omitted).
24
CASE NO. 20-20062-CIV-ALTONAGA/Goodman
Put simply, this is not “one of those rare cases in which minimum requirements inherent in
the concept of fair play and substantial justice defeat the reasonableness of jurisdiction.” 12 U.S.
S.E.C. v. Carrillo, 115 F.3d 1540, 1547 (11th Cir. 1997) (alterations adopted; quotation marks and
citation omitted).
Decision. Plaintiff satisfies Florida’s long-arm statute and exercising specific jurisdiction
over Easyfly does not offend due process. Defendants’ Motion is denied as to Easyfly.
B. Avila
Plaintiff contends Avila is subject to general jurisdiction, specific jurisdiction, and federal
long-arm jurisdiction under Federal Rule of Civil Procedure 4(k)(2). (See Resp. 10–21). The
Court disagrees, addressing each form of personal jurisdiction in turn.
General Jurisdiction. General jurisdiction arises from a nonresident defendant’s contacts
with the forum that are unrelated to the cause of action being litigated. See Consol. Dev. Corp.,
216 F.3d at 1292. Under Florida’s long-arm statute, 13 the Court may exercise general personal
jurisdiction over any defendant “who is engaged in substantial and not isolated activity within this
state, . . . whether or not the claim arises from that activity.” Fla. Stat. § 48.193(2) (alteration
added). “[T]he reach of section 48.193(2) extends to the limits on personal jurisdiction imposed
by the Due Process Clause of the Fourteenth Amendment.” Carmouche, 789 F.3d at 1204
(alteration added; other alterations adopted; quotation marks and citation omitted). So, the Court
need only determine whether the exercise of general jurisdiction over Avila would exceed
constitutional bounds. See id. (citation omitted).
12
Easyfly’s discussion of the remaining factors and strings of citations are not enough to establish that
jurisdiction over it offends notions of fair play and substantial justice. (See Mot. 20–21; Reply 11).
13
As mentioned, Florida’s long-arm statute recognizes two kinds of personal jurisdiction over a nonresident
defendant: specific jurisdiction and general jurisdiction. See Fla. Stat. §§ 48.193(1)–(2).
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CASE NO. 20-20062-CIV-ALTONAGA/Goodman
Plaintiff alleges Avila is “subject to the personal jurisdiction of th[e] Court” because he has
“travelled numerous times to the U.S., [] maintain[s] [a] bank account[] in Florida[,] and [] owns
property in South Florida.” (Am. Compl. ¶ 10 (alterations added); see also id. ¶¶ 34–35). Avila
insists “such unsubstantial contacts are insufficient for a finding of general jurisdiction.” 14 (Mot.
15). The Court agrees — general jurisdiction over Avila is improper.
“For an individual, the paradigm forum for the exercise of general jurisdiction is the
individual’s domicile[.]” Daimler AG, 571 U.S. at 137 (alteration added; citations omitted).
“Beyond [being domiciled in the forum], the Supreme Court has provided two other instances in
which the exercise of general jurisdiction over an individual is proper: where the individual
consents to the forum’s jurisdiction, and where the individual is present within the forum when
served with process.” McCullough v. Royal Caribbean Cruises, Ltd., 268 F. Supp. 3d 1336, 1350
(S.D. Fla. 2017) (alteration added; citations omitted).
Avila is a citizen and resident of Colombia. (See Am. Compl. ¶ 7; Avila Decl. ¶ 5). Avila
was not served in and did not consent to jurisdiction in Florida. (See generally Not. of Filing Proof
of Delivery Receipt Reg. Def. Avila [ECF No. 50], Ex. A [ECF No. 50-1]). General jurisdiction
over Avila is thus lacking. See Argos Glob. Partner Servs., LLC v. Ciuchini, 446 F. Supp. 3d 1073,
1086 (S.D. Fla. 2020) (concluding general personal jurisdiction over the defendant was lacking
because he (1) was a citizen of Brazil and Italy; (2) was a resident of France; and (3) was neither
served in nor consented to jurisdiction in Florida); Mar. Exec., LLC v. Larson Elecs., LLC, No.
17-cv-60323, 2018 WL 2938376, at *3 (S.D. Fla. June 11, 2018) (finding no general jurisdiction
14
In its Response, Plaintiff raises one argument in support of exercising general jurisdiction over Avila:
“Florida’s long-arm statute authorizes jurisdiction over . . . Avila.” (Resp. 15 (alteration added; footnote
call number omitted)). Defendants provide an apt observation: “[I]n the entire general jurisdiction
argument, . . . Avila is not mentioned at all except for the final sentence where Plaintiff states in conclusive
fashion . . . that Florida’s long-arm statute authorizes jurisdiction over . . . Avila.” (Reply 7–8 (alterations
added; quotation marks omitted)).
26
CASE NO. 20-20062-CIV-ALTONAGA/Goodman
where the defendant was “a resident of Texas, [and] [] was not served in and did not consent to
jurisdiction in Florida.” (alterations added)); Dohler S.A., 2017 WL 4621098, at *4 (stating general
jurisdiction was improper because the defendants were “both residents of North Carolina, [and]
were not served in and did not consent to jurisdiction in Florida.” (alteration added)).
Specific Jurisdiction. Plaintiff alternatively states Avila has submitted himself to Florida’s
specific jurisdiction by committing tortious acts within the state. (See Resp. 10–13; see also Am.
Compl. ¶¶ 7, 26–27, 29, 34, 37–40).
The relevant allegations are: (1) Avila is Easyfly’s president controlling Easyfly’s “actions
and/or making some of the most critical decisions”; (2) Avila “principally controls the actions of
Easyfly in relation to this Complaint and is instrumental in the operations of Easyfly”; (3) “Easyfly
sells tickets through various means, including its website which is accessible from anywhere in
the world[,]” including Florida; (4) Easyfly uses the infringing EASYFLY trademarks on its
website; (5) the United States “constitutes as [sic] country of origin for almost fifty percent of all
clicks to Easyfly’s website and accounts for the second largest source of income from online
purchases with significant sales purportedly coming from the United States, including Florida”;
and (6) the “Easyfly airline is benefitting from the infringing activities” of Kayak, Kiwi, and
Skyscanner. (Am. Compl. ¶¶ 7, 27, 29, 37–40, 53 (alteration added)). Plaintiff contends “as a
result of the[se] contacts and conduct by [Defendants], the Court may assert specific jurisdiction
over” Avila under section 48.193(1)(a)(2). (Resp. 13 (alterations added)).
Avila responds to Plaintiff’s allegations with his declaration and deposition testimony.
(See Reply 5). Avila states he is “not responsible for the marketing activities of [Easyfly,]” as
“[t]he day-to-day marketing activities . . . are carried out by [Easyfly’s] marketing and sales teams
of which [he] [is] not a member.” (Avila Decl. ¶ 25 (alterations added)). Avila declares Easyfly’s
27
CASE NO. 20-20062-CIV-ALTONAGA/Goodman
“marketing and sales teams . . . are responsible for [its] website, social media presence and
campaigns, preparation and dissemination of marketing campaigns and materials, [] corporate
image, and [] advertisements.” (Id. ¶ 26 (alterations added)). Avila reports “to a board of directors
which exercises independent judgment over the activities of the company, including its marketing
activities.” (Id. ¶ 27). Additionally, Avila testified he has not “personally reviewed . . . the
company[’s] website[.]” (Reply, Ex. N, Avila Dep. Tr. [ECF No. 95-1] 35:17–19 (alterations
added)). Avila explained the “business director . . . [and] systems officer of technology” are “in
charge of [Easyfly’s] website[.]” (Id. 35:20–23 (alterations added)).
Citing his averments and testimony, Avila insists the record evidence shows he “is not
involved . . . with the website, its design or implementation, or the use of any trademarks therein.”
(Reply 5 (alteration added)). On the present record, the Court agrees.
Plaintiff does not offer any evidence to rebut Avila’s submissions. 15 Instead, Plaintiff cites
to Easyfly’s sales to U.S. and Florida customers through use of Easyfly’s website to support the
position specific jurisdiction exists over Avila. (See Resp. 12 (stating “the issue is whether
Defendant Easyfly’s [— not Avila’s —] tortious acts caused injury in Florida.” (alteration
added))).
Plaintiff’s approach is problematic.
Plaintiff cites no authority supporting the
proposition Easyfly’s sales to Florida consumers through Easyfly’s website can form the
relationship between Avila, Plaintiff, and this case; especially where, as here, Avila’s submissions
sever any link between Avila and the trademark infringement at issue. Avila stated under oath he
neither directs, controls, or is responsible for Easyfly’s website; its website’s use of Plaintiff’s
15
Plaintiff maintains Defendants’ “statements and documents . . . contradict their assertions and, in fact,
support Plaintiff’s well-pled allegations.” (Resp. 13 (alteration and emphasis added)). This argument fails
for two reasons. First, as Avila correctly notes, Plaintiff “consistently couples both . . . Defendants as if
they were one entity.” (Reply 5 (alteration added)). Second, while Easyfly’s Google Analytics Reports
contradict Easyfly’s position (see n.7, supra), those Reports do not contradict Avila’s submissions and do
not provide evidence for the exercise of jurisdiction over Avila.
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CASE NO. 20-20062-CIV-ALTONAGA/Goodman
trademarks; or its marketing and sales activities — the tortious conduct supporting Plaintiff’s
trademark claims. (See Avila Decl. ¶¶ 25–27). It is Easyfly, the corporation, not Avila, the
individual, that allegedly chose to infringe on Plaintiff’s trademarks by offering and selling
Easyfly’s services to Florida consumers through a Florida-accessible website. Plaintiff provides
no evidentiary response to show Avila “principally controls the actions of Easyfly in relation to
this Complaint,” as Plaintiff alleges. (Am. Compl. ¶ 27).
Because Plaintiff fails to provide any evidence to counter Avila’s submissions, Plaintiff
has not met its burden of sufficiently alleging section 48.193(1)(a)(2) is satisfied under the theory
Easyfly’s Florida-accessible website and ticket sales in Florida give rise to specific jurisdiction
over Avila. See United Techs. Corp. v. Mazer, 556 F.3d 1260, 1282–83 (11th Cir. 2009) (finding
no personal jurisdiction over the defendant where the plaintiff failed to provide competent
evidence rebutting the defendant’s affidavit; stating “[a]t the threshold, . . . we cannot consider the
allegations about [the defendant’s] conduct in Florida because [the defendant’s] affidavit, which
[the plaintiff] has failed to rebut with competent evidence, specifically denies those allegations.”
(alterations added)); Turizo v. Jiffy Lube Int’l, Inc., No. 19-cv-61140, 2019 WL 4737696, at *5
(S.D. Fla. Sept. 27, 2019) (concluding the plaintiff failed to satisfy the long-arm statute because
the plaintiff provided no evidentiary response to the defendant’s rebuttal evidence); In re Banco
Santander Sec.-Optimal Litig., 732 F. Supp. 2d 1305, 1313 (S.D. Fla. 2010) (stating the plaintiffs’
“failure to rebut, with some admissible evidence, the statements in the various [d]efendants’
affidavits . . . fatally undermines the [p]laintiffs’ case for personal jurisdiction” (alterations added;
aff’d sub nom. Inversiones Mar Octava Limitada v. Banco Santander S.A., 439 F. App’x 840 (11th
Cir. 2011))).
29
CASE NO. 20-20062-CIV-ALTONAGA/Goodman
Even if Plaintiff satisfies the long-arm statute, the Court finds exercising specific
jurisdiction over Avila offends due process. As outlined, the first due process prong requires that
Plaintiff, at a minimum, demonstrate Avila had “some contact with the forum state and that the
contact was a but-for cause of the alleged tort.” PG Creative Inc., 2019 WL 5684219, at *4
(quotation marks and citations omitted). Said differently, “the alleged tort must arise out of
contacts that the ‘defendant himself’ creates with the forum.” Id. (quoting Walden v. Fiore, 571
U.S. 277, 284 (2014); other citation omitted)).
Plaintiff does not directly address the relatedness prong with respect to Avila, focusing
instead on Easyfly’s and Avila’s collective contacts with Florida and the Calder effects test in the
purposeful availment prong. (See Resp. 16–17). In any event, the alleged contacts between
Plaintiff and Avila are not but-for causes of Plaintiff’s alleged injury. Avila’s alleged contacts
with this forum include: (1) a vacation residence in Miami-Dade County; (2) business trips to
Florida “to shop for airplane parts . . . [and] visits to [Avions de Transport Regional GIE’s] training
facility”; (3) “pleasure trips” to Florida “at least once or twice a year”; (4) “a personal bank account
in Miami, Florida . . . in which [Avila] maintains both a checking and savings account”; and (5)
“signing control over Easyfly’s business bank account . . . in Miami, Florida.” (Am. Compl. ¶¶
34–35 (alterations added)). Plaintiff’s alleged injury — Easyfly’s use of infringing marks on its
Florida-accessible website and profiting from that use by selling services to Florida customers —
would have occurred regardless of Avila’s contacts with Florida. In other words, Avila’s pleasure
trips, business trips unrelated to marketing and Easyfly’s website, personal bank account, and
signing control “have nothing to do with the torts [Easyfly] allegedly committed.” Waite, 901 F.3d
at 1315 (alteration and emphasis added).
30
CASE NO. 20-20062-CIV-ALTONAGA/Goodman
In short, neither Florida’s long-arm statute nor the U.S. Constitution authorizes the Court
to exercise specific jurisdiction over Avila.
Federal Long-Arm Jurisdiction. The final, alternative basis Plaintiff asserts for exercising
jurisdiction over Avila — Rule 4(k)(2) (see Resp. 20–21) — is similarly unavailing. 16
Rule 4(k)(2) provides that serving a summons for a claim arising under federal law
establishes jurisdiction over a defendant if: “(A) the defendant is not subject to jurisdiction in any
state’s courts of general jurisdiction; and (B) exercising jurisdiction is consistent with the United
States Constitution and laws.” Fed. R. Civ. P. 4(k)(2). It “operates as a ‘national long-arm statute’
which ‘permits a court to aggregate a foreign defendant’s nationwide contacts’ for jurisdictional
purposes when the defendant does not show that he is subject to the personal jurisdiction of any
individual U.S. state, provided that the Plaintiff’s claims[] ‘arise under federal law’ and that the
exercise of jurisdiction is consistent with due process.” Weinstock v. Islamic Rep. of Iran, No. 1723272-Civ, 2019 WL 1993778, at *2 (S.D. Fla. May 6, 2019) (alteration added; quoting Fraser v.
Smith, 594 F.3d 842, 848–49 (11th Cir. 2010)).
The “[d]ue process analysis under Rule 4(k)(2) utilizes the same specific jurisdiction
factors as analysis under Rule 4(k)(1)(A), including whether (1) the defendant purposefully
directed its activities at residents of the forum, (2) the claim arises out of or relates to the
defendant’s activities with the forum, and (3) assertion of personal jurisdiction is reasonable and
fair.” Saint-Gobain Tech. Fabrics Am., Inc. v. Checkmate Geosynthetics, Inc., No. 6:09-cv-557,
2010 WL 11507686, at *6 (M.D. Fla. Feb. 5, 2010) (alteration added; quotation marks and citation
omitted); see also GolTV, Inc. v. Fox Sports Latin Am. Ltd., 277 F. Supp. 3d 1301, 1318 (S.D. Fla.
16
Plaintiff does not assert jurisdiction under the federal long-arm statute in its Amended Complaint. (See
generally Am. Compl.); see also Alston v. www.calculator.com, No. 20-cv-23013, 2020 WL 4451008, at
*6 n.2 (S.D. Fla. Aug. 3, 2020) (rejecting the plaintiff’s Rule 4(k)(2) argument in part because the complaint
did not assert federal long-arm jurisdiction as a basis for personal jurisdiction).
31
CASE NO. 20-20062-CIV-ALTONAGA/Goodman
2017) (laying out the due process test under Rule 4(k)(2) (citations omitted)). In cases where Rule
4(k) is invoked, the relevant forum for the minimum contacts analysis is the United States as a
whole. See Oldfield, 558 F.3d at 1220 (citation omitted).
Quite simply, after looking at the United States as a whole as the applicable forum for
minimum contacts, the Court finds the exercise of jurisdiction over Avila still offends due
process. 17 The only additional contact Plaintiff identifies as to Avila is “the business discussed
and conducted on a monthly basis with [Easyfly’s] former shareholder and founder of the company
based in New York[.]” (Resp. 21 (alterations added); see also Am. Compl. ¶ 34). Plaintiff,
however, does not address whether this additional contact is related to or gave rise to its causes of
action against Avila. 18 (See Resp. 20–21). Avila’s ordinary business activities in New York, as
alleged by Plaintiff, are too attenuated to relate to Plaintiff’s claims in this case, especially given
Avila’s unrebutted evidentiary submissions supporting his position he is not (and was not)
involved in Easyfly’s alleged tortious conduct. (See Avila Decl. ¶¶ 25–27). Plaintiff’s vague
contention Avila “discussed and conducted” business in New York does not dictate a different
outcome. (Resp. 21).
In sum, this case is not one of those “rare occurrence[s] when a court invokes jurisdiction
under [Rule 4(k)(2)].” Thompson v. Carnival Corp., 174 F. Supp. 3d 1327, 1337 (S.D. Fla. 2016)
(alterations added).
17
Nearly all of Plaintiff’s claims asserted against Avila arise under federal law. (See generally Am.
Compl.). The Court thus focuses on whether exercising jurisdiction over the federal claims is consistent
with due process.
18
Plaintiff’s Rule 4(k)(2) argument is directed at both Defendants, not Avila, and relies mostly — if not
entirely — on Easyfly’s contacts with the United States, not Avila’s. (See Resp. 20–21; see id. 21
(“Defendants cannot escape justice by spreading their contacts around the state where cumulatively they
provide jurisdiction in the United States.” (emphasis added))).
32
CASE NO. 20-20062-CIV-ALTONAGA/Goodman
Decision. Plaintiff fails to show that general, specific, or federal long-arm jurisdiction
exists over Avila. Defendants’ Motion is granted with respect to Avila.
IV.
CONCLUSION
For the foregoing reasons, it is ORDERED AND ADJUDGED that Defendants, Empresa
Aerea de Servicios y Facilitacion Logistica Integral, S.A. and Alfonso Avila Velandia’s Motion to
Dismiss Plaintiff’s Amended Complaint for Lack of Personal Jurisdiction [ECF No. 85] is
GRANTED in part and DENIED in part. Plaintiff’s claims against Alfonso Avila Velandia are
DISMISSED without prejudice for lack of jurisdiction. The Clerk is directed to TERMINATE
Defendant, Alfonso Avila Velandia.
DONE AND ORDERED in Miami, Florida, this 11th day of September, 2020.
_________________________________
CECILIA M. ALTONAGA
UNITED STATES DISTRICT JUDGE
cc:
counsel of record
33
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