Airplay America, LLC v. Cartagine et al

Filing 54

ORDER granting 25 Motion to Dismiss for Lack of Jurisdiction. The Complaint is dismissed as to Defendant Emanuel Gerard. Signed by Judge William J. Zloch on 4/2/2009. (bc)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-81224-CIV-ZLOCH AIRPLAY AMERICA, LLC, Plaintiff, vs. ROBERT CARTAGINE, et al., Defendants. / THIS Gerard's MATTER Amended is before To the Court upon For Defendant Lack Of Emanuel Personal FINAL ORDER OF DISMISSAL AS TO DEFENDANT EMANUEL GERARD

Motion

Dismiss

Jurisdiction (DE 25). The Court has carefully reviewed said Motion and the entire court file and is otherwise fully advised in the premises. Plaintiff Airplay America, LLC initiated the above-styled cause with the filing of its Complaint (DE 1, Ex. A) alleging violations of the Stored Communications Act, 18 U.S.C. §§ 2701, et seq. (2006). Specifically, Plaintiff alleges that Defendants

impermissibly accessed its email accounts and messages after their removal from positions with Plaintiff. Defendant Emanuel Gerard

now moves for the Court to dismiss this action against him on the basis that the Court lacks in personam jurisdiction over him. The determination of personal jurisdiction over a nonresident defendant involves a two-part analysis. First, the Court must

determine that the forum state's long-arm statute permits an assertion of jurisdiction. Second, the Court must determine

whether sufficient minimum contacts of the defendant with the forum exist "to satisfy the Due Process Clause of the Fourteenth

Amendment

so

that notions

`maintenance of fair

of

the and

suit

does

not

offend

traditional

play

substantial

justice.'"

Cable/Home Comm. Corp. v. Network Productions, Inc., 902 F.2d 829, 855 (11th Cir. 1990) (citing Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)) (further citations omitted). tests the legal sufficiency of the pleadings. A motion to dismiss Venetian Salami Co.

v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989). Plaintiff proceeds under two alternative sections of Florida's long-arm statute. It cites what it calls the relevant part of that

statute as follows: (1) Any person . . . who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself . . . to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts: (a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state. (b) Committing a tortious act within this state. Fla. St. § 48.193, cited in DE 48, p. 3. Either ground is

sufficient to establish the Court's personal jurisdiction over Gerard. Neither is availing.

Gerard is a domiciliary of New York and was a director of Plaintiff before this lawsuit. DE 25, p. 4. Gerard argues that

the Court cannot exercise jurisdiction over him because he has not subjected himself to the reach of Florida's long-arm statute and does not maintain sufficient minimum contacts with Florida to reasonably expect to be haled into court here. In its Response (DE

48) to the instant Motion, Plaintiff raises three grounds for

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asserting jurisdiction under the long-arm statute: acting as an officer and director of Plaintiff, attending board meetings and investor presentations in Florida, and causing injury to Plaintiff, a Florida entity, by violating § 2701. DE 48, p. 2.

The first option available to Plaintiff to establish personal jurisdiction over Gerard is to show that he operated or carried on a business in the State of Florida. Plaintiff argues that Gerard's managerial position with Plaintiff was enough to bring him within operation of Fla. St. § 48.193(1)(a). Gerard's only business contacts The record establishes that Florida are five board

with

meetings where he was physically present and other meetings and communications with directors and investors done by telephone or email. Affidavit of Emanuel Gerard, DE 25, Ex. A, ¶¶ 22-23. This

is insufficient to invoke the "operating a business" prong of the long-arm statute because the cause of action must arise out of the contacts with Florida. Fla. St. § 48.193(1). There is no

allegation that Gerard's attendance at board meetings or his direct communications with directors and investors give rise to

Plaintiff's cause of action for Gerard's improper access to its emails. Rather, Plaintiff characterizes Gerard's board meetings

only as minimum contacts under the second part of the personal jurisdiction analysis. Plaintiff has failed to show that Gerard

was operating a business in Florida that gave rise to its present cause of action. Plaintiff also argues that Gerard has satisfied subsection (b) of the long-arm statute quoted above. The Complaint alleges that

he has injured Plaintiff, a Florida entity, and thus committed a 3

tortious act in Florida. because it only

Its argument misses the mark, however, cases finding jurisdiction where

discusses

communications were directed into the State of Florida. See DE 48, pp. 7-9. The Complaint only alleges that Gerard accessed

Plaintiff's email accounts, and Plaintiff states without support that the physical location of the email servers is immaterial. 48, p. 7. DE

Accessing email accounts, the servers of which are

presumably outside Florida, is not directing communications into Florida. Thus, Gerard did not, simply because Plaintiff is a

Florida limited liability company, commit tortious act in this State. Jack Pickard Dodge, Inc. v. Yarbrough, 352 So. 2d 130, 134 Merely causing injury to a Florida Id. Plaintiff has personal

(Fla. Dist. Ct. App. 1977).

entity is not enough to confer jurisdiction. failed to establish that this Court may

exercise

jurisdiction over Gerard because he has not been shown to have committed a tortious act in Florida. Plaintiff has failed to establish that the Court may exercise specific jurisdiction over the person of Gerard. In its Response

to the instant Motion Plaintiff acknowledges that it "has not alleged that Gerard is subject to the general jurisdiction of the Court." DE 48, p. 3 n.2. By prior Order (DE 50), the Court

construed this footnote as a motion for leave for Plaintiff to amend its Complaint (DE 1) to allege facts necessary to establish general jurisdiction and granted Plaintiff leave to amend its Complaint in a manner necessary to fully allege general

jurisdiction. permitted.

Plaintiff has failed to do so within the time

Thus, it stands on its Complaint as filed to contest 4

the instant Motion, and the Court's general jurisdiction, Fla. St. § 48.193(2), is not implicated. The Court having found that Plaintiff has failed to establish that Gerard falls within reach of Florida's long-arm statute, the constitutional unnecessary. Accordingly, after due consideration, it is ORDERED AND ADJUDGED as follows: 1. Defendant Emanuel Gerard's Amended Motion To Dismiss For Lack Of Personal Jurisdiction (DE 25) be and the same is hereby GRANTED; and 2. The Complaint (DE 1) be and the same is hereby DISMISSED as to Defendant Emanuel Gerard for the Court's lack of personal jurisdiction over him. DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this 2nd day of April, 2009. half of the personal jurisdiction analysis is

WILLIAM J. ZLOCH United States District Judge Copies furnished: All Counsel and Parties of Record

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