Bluesky Greenland Environmental Solutions, LLC v. Rentar Environmental Solutions, Inc. et al

Filing 277

ORDER granting 188 HBL's Motion to Dismiss for Lack of Jurisdiction & Dismissing Claims Against Defendant HBL without prejudice. Signed by Judge Daniel T. K. Hurley on 4/4/14. (lr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-81234-CIV-HURLEY
BLUESKYGREENLAND ENVIRONMENTAL
SOLUTIONS, LLC,
plaintiff,
vs.
21ST CENTURY PLANET FUND, LLC et al.,
defendants.
_______________________________________/
ORDER GRANTING DEFENDANT HBL POWER SYSTEM LTD=S (AHBL@)
MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION [ECF No. 188]
& DISMISSING CLAIMS AGAINST DEFENDANT HBL WITHOUT PREJUDICE
Plaintiff Blueskygreenland Environmental Solutions, LLC (ABluesky@), is a Texas limited
liability company that exports environmentally-friendly United States products and services. Rentar
Environmental Solutions, Inc. (“Rentar”), a Delaware corporation with a principal place of business
in West Palm Beach, Florida, manufactures an in-line pre-combustion fuel catalyst which treats fuel
to enhance combustion, thereby increasing fuel efficiency and reducing emissions. In 2007, Bluesky
and Rentar entered into a nonexclusive distributorship contract granting Bluesky a right to distribute
Rentar’s product in various countries, a group which was ultimately expanded by agreement of the
parties to include the nation of India. The contract was scheduled for automatic renewal in October,
2010, but Rentar unilaterally terminated the contract with Bluesky at that time and
contemporaneously entered into a new, exclusive distributorship contract covering the nation of India
with certain of the defendants named in this case.
Bluesky subsequently brought this action against defendants 21st Century Planet Fund, LLC
(A21st Century@), a Delaware corporation doing business in Florida; Gregory Georgas (“Georgas”)

and Michael Hoban (“Hoban”), both residents of Palm Beach County, Florida; Venkat Tangirala
(“Venkat”) and Ravi Tangirala (“Ravi”), both residents of India, and HBL Power Systems Ltd.
(“HBL”), a company chartered and headquartered in India, asserting claims for common law fraud
and misrepresentation, tortious interference with an advantageous contractual and business
relationship, and conspiracy to fraudulently usurp valuable proprietary information owned by
Bluesky. Essentially, Bluesky contends that 21st Century, Georgas, Hoban, Venkat, Ravi and HBL
conspired to fraudulently induce Bluesky to part with valuable proprietary marketing information on
the Indian market which it had developed during the extended course of its Rentar distributorship,
and then used that information to their own advantage in successfully jockeying to secure an
exclusive Rentar distributorship over India for themselves.
The factual background to these claims has been detailed in the prior order of this court
denying defendants 21st Century Planet Fund, LLC and Gregory Georgas= converted motion for
summary judgment, and will not be repeated here [ECF 178]. The case is now before the court on
the defendant HBL’s motion to dismiss the complaint for lack of personal jurisdiction, or
alternatively, to dismiss the complaint for defective service of process [ECF 188], the plaintiff’s
response in opposition to the motion [ECF 195] and the defendant’s reply [ECF 201].
Having carefully considered the parties’ submissions on the motion, the court has determined
to grant the motion to dismiss for lack of personal jurisdiction without prejudice, making it
unnecessary to reach the defendant HBL’s alternative challenge to the sufficiency of process.
I. STANDARD OF REVIEW
When a defendant moves to dismiss for lack of personal jurisdiction, an evidentiary hearing
is not required. Melgarejo v. Pycsa Panama, S.A., 537 Fed. Appx. 852 (11th Cir. 2013), citing
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Mutual Service Ins. Co. v. Frit Industries, Inc., 358 F.3d 1312, 1319 n. 6 (11th Cir. 2004). When the
court does not hold a hearing, the plaintiff must establish a prima facie case of personal jurisdiction
by presenting “sufficient evidence by way of affidavits or deposition testimony to survive a motion
for a directed verdict.” Id. If the plaintiff makes a prima facie case for personal jurisdiction, the
defendant then must raise, through affidavits, documents or testimony, a meritorious challenge to
personal jurisdiction; if the defendant does so, the burden shifts to the plaintiff to prove jurisdiction
by affidavits, testimony or documents. Internet Solutions Corp. v. Marshall, 557 F.3d 1293 (11th
Cir. 2009). The court must construe the allegations in the complaint as true if they are not
contradicted by the defendant’s evidence; when there is conflicting evidence, the court must construe
all reasonable inferences in favor of the plaintiff. Frit, 358 F.3d at 1319.
In determining whether the exercise of personal jurisdiction of a non-resident defendant is
proper, a two-step inquiry applies. Horizon Aggressive Growth, L.P. v. Rothstein-Kass, P.A., 421
F.3d 1162, 1166 (11th Cir. 2005). First, the court examines whether exercise of jurisdiction over the
non-resident defendant would satisfy the requirements of the state long-arm statute. Meier ex rel
Meir v. Sun Int=l Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002). Second, the court examines
whether exercise of personal jurisdiction over the defendant would violate the Due Process Clause of
the Fourteenth Amendment to the United States Constitution. Id. The due process inquiry
traditionally requires the court to determine whether the defendant has sufficient Aminimum contacts@
with the forum state so as to satisfy Atraditional notions of fair play and substantial justice.@ Burger
King Corp. v. Rodzewicz, 471 U.S. 462, 472-73, 105 S. Ct. 2174, 85 L. Ed.2d 528 (1985); Madara
v. Hall, 916 F.2d 1510, 1516 n. 7 (11th Cir. 1990); Consolidated Dev. Corp. v. Sherritt, Inc., 216
F.3d 1286, 1292 (11th Cir. 2000); Cable /Home Communication v. Network Products, 902 F.2d 829
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(11th Cir. 1990).
Recognizing that Bluesky, as plaintiff, has the burden of establishing a prima facie case of
personal jurisdiction under these requirements, Meier ex rel Meier v. Sun Int=l Hotels, Ltd, 288 F.3d
1264 (11th Cir. 2002), the court now turns its analysis to an application of these standards to the
evidence in this case.
II. DISCUSSION
A.

Florida Long-Arm Statute Requirements

Florida=s long-arm statute provides for both general and specific personal jurisdiction.
§ 48.193(1) - (2), Florida Statutes. General jurisdiction refers to the power of a court to adjudicate
any cause of action involving a particular defendant if that defendant engaged in Asubstantial and not
isolated@ activity within Florida, regardless of whether the claim asserted arose from that activity.
Meier v. Sun Int=l Hotels, Ltd., 288 F.3d 1264 (11th Cir. 2002). In other words, general jurisdiction
is based on a defendant=s contacts with the forum state that are not necessarily related to the cause of
action litigated. Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1293 (11th Cir. 2000). It
requires a showing of Acontinuous and systematic@ general business contacts within the state,
Trustees of Columbia University v. Ocean World, S.A., 12 So.3d 788, 792 (Fla. 4th DCA 2009),
which may be found where a nonresident=s activities are Aextensive and pervasive, in that a
significant portion of the defendant=s business operations or revenue derived from established
commercial relationships in the state,@ or where a defendant Acontinuously solicits and procures
substantial sales in Florida.@ Id.
In contrast, specific jurisdiction exists where the plaintiff=s cause of action arises from or is
directly related to the defendant=s contacts with the forum state. Oldfield v. Pueblo de Bahia Lora,
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S.A., 558 F.3d 1210, 1221 n. 27 (11th Cir. 2009); Stubbs v. Wyndham Nassau Resort & Crystal
Palace Casino, 447 F.3d 1357, 1360 n. 3 (11th Cir. 2006); Consolidated Dev. Corp. v. Sherritt, Inc.,
216 F.3d 1286 (11th Cir. 2000). The requirement that the plaintiff=s cause of action must Aarise from@
the defendant=s activities is broader than the concept of Aproximate cause,@ and is satisfied by a
showing of some Adirect affiliation, nexus, or substantial connection between the cause of action and
the [defendant=s] activities within the state.@ Sun Trust Bank v. Sun Int=l Hotels, Ltd, 184 F. Supp. 2d
1246, 1269 (S.D. Fla. 2001).
Bluesky here invokes specific jurisdiction under the Atortious act within Florida@ provision of
Florida’s long-arm statute, § 48.193(1) (a) (2), Florida Statues. This provision provides that a
nonresident defendant is subject to personal jurisdiction in Florida Afor any cause of action arising
from ... [c]ommitting a tortious act within [Florida].@ Under Florida law, a non-resident commits a
tortious act “within Florida@ when he commits an act outside the state that causes injury within the
state. Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339 (11th Cir. 2013), citing Licciardello v.
Lovelady, 544 F.3d 1280 (11th Cir. 2008). For purposes of this statute, the defendant does not have
to be physically present in Florida for the tortious act to occur “within” the state. Internet Solutions
Corp. v. Marshall, 557 F.3d 1293 (11th Cir. 2009), citing Wendt v. Horowitz, 822 So.2d 1252, 1260
(Fla. 2002). Additionally, Acommitting a tortious act@ within the meaning of this provision may be
accomplished via “telephonic, electronic, or written communications into Florida,” so long as the
cause of action arose from those communications, and, under certain circumstances, such
communications can also satisfy due process requirements. See also Swanky Apps, LLC v. Roony
Invest & Finance, S.A., 126 So.3d 336 (Fla. 3d DCA 2013); OSI Industries, Inc. v. Carter, 834
So.2d 362 (Fla. 5th DCA 2003).
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In support of this jurisdictional theory, Bluesky has demonstrated an exchange of electronic
email communications between Venkat Tangirala, Gregory Georgas and Michael Hoban involving
the solicitation of an exclusive Indian distributorship contract from Rentar which took place during
the early part of 2010 and continued through October 2010; in addition, plaintiff has adduced
evidence of an email exchange in October 2010 between AJ Prasad, the principal of HBL ( India);
Venkat Tangirala (India); Richard Ford, the CEO of Rentar, (West Palm Beach, Florida); Gregory
Georgas and Michael Hoban (West Palm Beach, Florida) concerning the negotiation and execution
of an exclusive Rentar distributorship agreement between Rentar, HBL, and 21st Century [ECF
195-2]. Further, Bluesky also adduces evidence of email correspondence between Venkat, Georgas
and Hoban relating to Venkat’s anticipated trip to West Palm Beach on November 13-14, 2010 to
discuss HBL performance issues under the new distributorship contract, including the forwarding of
emails between HBL representatives in India and Venkat relating to HBL’s concerns over Rentar’s
capacity to meet production demands under the new contract [ECF 195-3].
Because the tortious conduct

alleged against HBL - tortious interference with the

Bluesky/Rentar contract B arises in part from electronic communications sent into the state both
directly by HBL (submission of the executed Rentar distributorship agreement) and indirectly by
HBL’s alleged co-conspirators (communications involving solicitation of Rentar), the court
concludes that sufficient jurisdictional facts exist to support a cause of action against HBL for the
alleged commission of a tortious act within this state, to wit, interference with contractual relations,
within the meaning of §48.193 (1) (a) (2) of the Florida long-arm statute. See Wilcox v. Stout, 637
So.2d 335 (Fla. 2d DCA 1994) (if plaintiff successfully alleges conspiracy claim against defendants,
and that any member of conspiracy committed tortious acts in Florida in furtherance of that
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conspiracy, all conspirators are subject to jurisdiction of Florida through “tortious act within Florida”
prong of long-arm statute); Chase Manhattan Bank v. Cebeck, 505 So.2d 539 (Fla. 1st DCA 1987)
(jurisdiction under “tortious act” provision of long-arm established against nonresident bank charged
with tortiously interfering with business relationship in state by causing vendor to breach plaintiff’s
offer to purchase property).
B.

Due Process Considerations

Accordingly, the court must reach the next step of determining whether the exercise of
jurisdiction under this prong of the Florida long-arm statute comports with the Due Process
requirements of the Fourteenth Amendment to the United States Constitution.
In specific personal jurisdiction cases, the court applies a three-part due process test, which
examines: (1) whether the plaintiff=s claims Aarise out of or relate to@ at least one of the defendant=s
contacts with the forum; (2) whether the nonresident defendant Apurposefully availed@ itself of the
privilege of conducting activities within the forum state, thus invoking the benefit of the forum=s
state’s laws, and (3) whether the exercise of personal jurisdiction comports with Atraditional notion
of fair play and substantial justice.@ Lousi Vuitton Malletier, SA v. Mosseri, 736 F.3d 1339 (11th Cir.
2013) and cases cited infra. The plaintiff bears the burden of establishing the first two prongs, and if
it does so, the defendant must make a A compelling case@ that the exercise of jurisdiction would
violate traditional notions of fair play and substantial justice.@ Diamond Crystal Brands, Inc. v. Food
Movers Int’l, Inc., 593 F.3D 1249, 1267 (11th Cir. 2010).
Here, Bluesky’s tortious interference claims and conspiracy claims arise out of HBL’s alleged
solicitation and consummation of an exclusive distributorship contract with Rentar, a Florida-based
company with which Bluesky previously contracted. There is direct causal relationship between
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HBL, Florida and the tortious interference claims to satisfy the first requirement of “relatedness”
under this test.
The court next addresses whether HBL purposely availed itself of conducting activity within
the forum state. In intentional tort cases, there are two tests for determining whether this element
occurred. Louis Vuitton Malletier, SA, supra at 1356-57. First, the court may apply the Aeffects
test,@ articulated in Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L.Ed.2d 804 (1984)
(upholding jurisdiction of California court over Florida defendants based on allegedly libelous effect
of Florida conduct which was calculated to cause injury to plaintiff in California). Under this test, a
nonresident defendant=s single tortious act can establish purposeful availment, without regard to
whether the defendant had any other contacts with the forum state, but only where the tort: (1)
[was] intentional; (2) [was] aimed at the forum state, and (3) caused harm that the defendant should
have anticipated would be suffered in the forum state. Id at 1356, citing Lovelady at 1285-86.
The “effects test” provides an additional means, unavailable in contract cases, of determining
the appropriateness of personal jurisdiction – one that is based on a plaintiff’s ties to the forum state
and the harm suffered by the plaintiff. The test does not, however, supplant the traditional minimum
contacts test for purposeful availment applicable in contract and tort cases alike. Id at 1357. As
applied to tortious interference claims, the Calder “effects test” requires a determination of whether
the alleged tortfeasor expressly aimed his out-of-state conduct at the forum state, requiring a focus
on the nexus between the forum and the injured contractual relationship.

Brennan v. Roman

Catholic Diocese of Syracuse New York, 322 Fed. Appx. 852 (11th Cir. 2009) (unpub).
The court may also apply a traditional purposeful availment analysis under the traditional
“minimum contacts” test. Louis Vuitton at 1356-57, citing S.E.C. v. Carrillo, 115 F.3d 1540, 1542
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(11th Cir. 1997) (applying traditional minimum contacts test in case involving intentional tort claims
of securities fraud).

Under the

traditional minimum contacts test, the court assesses the

nonresident=s contacts with the forum state and asks whether those contacts: (1) are related to
plaintiff=s cause of action; (2) involve some act by which the defendant purposefully availed itself
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, citing Carrillo 115 F. 3d 1540,1542
(11th Cir. 1997).
In this case, Bluesky contends that sufficient minimum contacts exist between HBL and
Florida to satisfy constitutional due process concerns either directly based on the conduct of Venkat,
the alleged agent of HBL, or indirectly based on the conduct of HBL’s alleged conspirators – Hoban,
Georgas, and 21st Century, in the state of Florida. The court disagrees.
First, HBL disputes that Venkat served as agent for HBL at any material time during the
chronology of events alleged in the complaint, and Bluesky does not adduce any affirmative evidence
tending to suggest the existence of an agency relationship between Venkat and HBL during the
course of the alleged conspiracy to usurp Bluesky’s distributorship agreement with Rentar, or the
time at which HBL and 21st Century executed their exclusive distributorship agreement with Rentar
at issue in this case.
Bluesky’s efforts to impute acts of coconspirators to HBL for purposes of establishing a basis
for exercise of personal jurisdiction over HBL in this forum are similarly unavailing. While A[t]he
existence of a conspiracy and acts of a co-conspirator within the forum may, in some cases, subject
another coconspirator to the forum’s jurisdiction,@ Melea, Ltd. v. Jawer SA, 511 F.3d 1060, 1069
(10th Cir. 2007), for personal jurisdiction based on a conspiracy claim to exist, the plaintiff must
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offer facts that would support a prima facie showing of a conspiracy. Id. See also Shrader v
Biddinger, 633 F.3d 1235 (10th Cir. 2011). In addition, plaintiff must show that the non-resident
defendant’s activity meets the “effects test” or traditional “minimum contacts” test in order to satisfy
constitutional due process concerns.
Assuming, arguendo, that Bluesky could make a prima facie showing of a conspiracy, this
tenet might warrant holding HBL, Georgas, Hoban, Venkat and 21st Century Planet Fund LLC liable
for each other’s acts under Florida law, but it would not necessarily permit exercise of jurisdiction
over HBL based on the conduct of the alleged coconspirators in Florida. This follows because while
minimum contacts can be based on a coconspirator’s presence in the forum state, this obtains only if
the conspiracy is directed towards the forum, or substantial steps in furtherance of the conspiracy are
taken in the forum. Melea Ltd., supra at 1070.
These elements are lacking here because (1) there is no allegation or evidence of a Ameeting
of the minds@ between the co-conspirators which transpired in Florida, nor evidence of any
substantial steps taken in furtherance of the conspiracy in this state; (2) there is no allegation or
evidence of injury related to the conspiracy that occurred in the State of Florida (Bluesky is a Texas
corporation complaining of lost revenues from sales in the territory of India). See also Weldon v
Ramstad-Hvass, 512 Fed Appx. 783 (10th Cir. 2013) (unpub).
Nor is the evidence sufficient to satisfy the Calder “effects test” for exercising personal
jurisdiction over a nonresident charged with commission of a single intentional tort aimed at the
forum state. While there is evidence of HBL’s participation in the alleged intentional tort of tortious
interference, as well as evidence that the tort was aimed at Florida (usurpation of lucrative
distributorship contract issued by a Florida- based company), there is no evidence of an injury
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suffered in the forum state which would make it reasonable for HBL to anticipate being haled into
litigation in this state.
Because plaintiff has not established on this record that alleged tortious acts committed
outside the forum state caused an effect within the forum state – i.e. it does not show any in-forum
effects of HBL’s actions -- it cannot demonstrate that exercise of jurisdiction over HBL is
fundamentally fair pursuant to the Calder “effects test.” See e.g. Fielding v. Hubert Burda Media,
Inc., 415 F.3d 419 (5th Cir. 2005) (exercise of specific personal jurisdiction under “effects test”
disallowed in libel case against nonresident defendant, where plaintiffs did not show either
significant circulation or certain harm in the forum state, and publishers did not meaningfully direct
activities toward Texas). 1
Because the court does not find evidence sufficient to satisfy the “purposeful availment”
element of the tri-partite due process test here, the constitutional inquiry is concluded without the
necessity of addressing whether the exercise of jurisdiction would offend traditional notions of fair
play and substantial justice.
Based on the foregoing, it is ORDERED AND ADJUDGED:
1. The defendant HBL's motion to dismiss the plaintiff’s second amended complaint for

1

Compare Viasystems, Inc. v. EBM- Papst St. Georgen GmbH & Co., 646 F.3d 589 (8th Cir. 2011) (effects in Missouri
of German corporation’s refusal to pay replacement costs for alleged defective fans sold to Missouri-based corporation’s
Chinese subsidiary could not support exercise of specific personal jurisdiction in a tort action filed in Missouri, where
refusal to pay was not uniquely or expressly aimed at Missouri or performed for the purpose of having its consequences
felt there) with CE Distribution, LLC v. New Sensor Corp., 380 F.3d 1107 (9th Cir. 2004) (nonresident defendant’s
importation of electronic devices into U.S. to compete with foreign manufacturer’s U.S. distributor satisfied effects test
for purposeful availment of forum state where distributor was located in tortious interference suit; defendant’s conduct
was intended to injure distributor in forum state); Forum Financial Group, Ltd. Liability Co. v. President, Fellows of
Harvard College, 173 F. Supp. 2d 72 (D. Me. 2001) (sustaining exercise of personal jurisdiction by federal court in
Maine over Massachusetts and Russian residents accused of defrauding Maine company, where defendants purposefully
initiated and solicited business relationship with Maine-based company (even though contract was for services to be
provided in Russia) and plaintiffs suffered injury in Maine).

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lack of personal jurisdiction [ECF No. 188] is GRANTED.
2. This action is DISMISSED WITHOUT PREJUDICE as against defendant HBL
only.
DONE AND ORDERED in Chambers at West Palm beach, Florida this 4th day of April,
2014.

Daniel T. K. Hurley
United States District Judge

cc. all counsel

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