Lobel et al v. The Genesis Group International Inc et al
Filing
35
OPINION AND ORDER granting 15 Motion to Dismiss for Lack of Jurisdiction; denying 18 Motion for Leave to File; granting 26 Motion for Leave to File surreply. Clerks Notice: Filer must separately re-file the amended pleading pursuant to Local Rule 15.1, unless otherwise ordered by the Judge. Signed by Judge Kenneth A. Marra on 4/29/2013. (ir)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-81408-CIV-MARRA
PAUL A. LOBEL AND LAURA ANNE LOBEL,
individuals,
Plaintiffs,
vs.
THE GENESIS GROUP INTERNATIONAL, INC.,
CONCIERGE WELLNESS, INC., and
JUDD FUHR, MD, DC, an individual,
Defendants.
_____________________________________/
OPINION AND ORDER
This cause is before the Court upon Defendants Concierge Wellness, Inc. and Judd A.
Fuhr, MD, DC’s Motion to Dismiss (DE 15); Plaintiffs Paul A. Lobel and Laura Anne Lobel’s
Cross-Motion for Leave to File an Amended Complaint (DE 18) and Plaintiffs’ Motion for Leave
to File a Sur-Reply (DE 26). The Court has carefully considered the motions and is otherwise
fully advised in the premises.
I. Background
Plaintiffs Paul A. Lobel and Laura Anne Lobel (“Plaintiffs”) bring this two-count
Complaint for breach of contract (count one) against Defendant The Genesis Group International,
Inc.1 (“TGGI”) and for conversion against Defendants Concierge Wellness, Inc. (“CW”) and
Judd Fuhr, MD, DC (“J. Fuhr”) (collectively, “Defendants”). (Compl., DE 1.) The Complaint
alleges the following:
1
Default judgment was entered against TGGI on February 22, 2013. (DE 23.)
Plaintiffs loaned TGGI, whose principal place of business is in Florida, $57,000.00 on
December 1, 2003. (Compl. ¶ 7, introductory paragraph; promissory note, DE 1-5.) The
promissory note was secured by a pledge of shares of stock in TGGI. (Pledge document, DE 17.) Upon default of the debt or breach of the agreement, Plaintiffs had the right to foreclose on
the pledged shares and exercise their rights as secured parties. (Pledge document.) The
promissory note was extended by mutual agreement until January 1, 2009. (Compl. ¶ 7;
extension of note, DE 1-6.) The note is in default and has accrued principal and interest at a rate
of 10.25% in excess of $75,000.00. The note provided for application of Florida law. (Compl. ¶
10.)
“Upon information and belief,” J. Fuhr knew that his father, Allan Fuhr (“A. Fuhr”),
controlled TGGI and that TGGI had become insolvent. (Compl. ¶ ¶ 6, 12.) J. Fuhr also knew
that Plaintiffs had loaned money to TGGI and that the promissory note had not been paid by
TGGI. J. Fuhr accepted the conveyance of the United States registered trademark “Sinusave”
and all intellectual property rights and goodwill attached thereto from TGGI without paying
equivalent consideration, thereby “converting what rightfully was an asset of TGGI . . . that could
have been used to satisfy all or part of the monies owed by TGGI to Plaintiffs.” (Compl. ¶ 12.)
The “wherefore” section of the Complaint seeks a judgment for conversion against CW as well.
Defendants move to dismiss for lack of personal jurisdiction. In making that argument,
they state that the Complaint fails to allege facts establishing jurisdiction pursuant to the Florida
long arm statute. They also state that they have no minimum contacts with Florida with respect to
the alleged conversion of the trademark because all negotiations took place outside of Florida. In
addition, Defendants contend that the conversion claim should be dismissed for failure to state a
2
claim. Plaintiffs respond that because Defendants have committed the tortious act of conversion,
there is personal jurisdiction under the Florida long-arm statute. They also allege general
personal jurisdiction over Defendants. Finally, they claim the conversion claim is properly
alleged.
II. Jurisdictional Evidence
A. Plaintiffs’ Complaint
With respect to jurisdiction, the Complaint states the Court has jurisdiction over TGGI
based on either general jurisdiction or, alternatively, from conducting business in this state.
(Compl. ¶ 3.) The Complaint does not provide a jurisdictional basis over CW and J. Fuhr. The
Complaint does state that “[u]pon information and belief,” CW is a Missouri corporation and J.
Fuhr is the president, owner and chief medical officer of CW. (Compl. ¶ 6.) Attached to the
Complaint is a document indicating that the trademark assignment from TGGI to CW was filed
by a Florida attorney. (Trademark assignment, DE 1-8.)
B. Defendants’ Initial Evidence
CW is a Missouri corporation formed in 2007. (J. Furh Aff. I ¶ 7, DE 15-1.) Its business
office is located in St. Louis, Missouri and it regularly transacts business in the states of Missouri
and Kansas. (J. Fuhr Aff. I ¶ ¶ 9-10.) CW does not transact business in Florida and does not
maintain any offices in Florida. (J. Fuhr Aff. I ¶ ¶ 11, 14.) CW neither owns real property in
Florida nor does it maintain any bank accounts in Florida. (J. Fuhr Aff. I ¶ ¶ 12-13.) J. Fuhr is
the sole shareholder of CW. (J. Fuhr Aff. I ¶ 6.)
J. Fuhr has been a resident of St. Louis, Missouri since 2004. (J. Fuhr Aff. I ¶ 2.) He does
not own real property in Florida, does not maintain any bank accounts in Florida and does not
3
conduct any business in Florida. (J. Fuhr Aff. I ¶ 9.) Neither J. Fuhr nor CW own, or have
owned, an interest in TGGI and they are not indebted to Plaintiffs under the promissory note atissue. (J. Fuhr Aff. I ¶ 17.) CW is the sole owner of the SINUSAVE trademark. (J. Fuhr Aff. I ¶
20.) CW has never used the trademark in Florida or any other state. (J. Fuhr Aff. I ¶ 15.) CW
accepted the trademark in Missouri, not Florida. (J. Fuhr Aff. I ¶ 21.)
C. Plaintiffs’ Rebuttal Evidence
Plaintiffs submit the following documents:
1) A document indicating that A. Fuhr registered the domain name SINUSAVE.COM
and that it was “updated” on May 26, 2011. (Whois Registry, DE 17-1.)
2) A page from a website, SINUSAVE.COM, which indicates there were “33 captures”
from April 3, 2004 through February 2, 2011. (Internet Archive Record of Sinusave.com,
DE 17-2.)
3) A page from a website, Worldchiroexpo.com, which identifies J. Fuhr as its “chief
operating officer.” (Worldchiroexpo.com Internet Page, DE 17-3.)
4) The articles of incorporation for World Chiro Expo, Inc. which states it is Florida
corporation and lists A. Fuhr as director of the corporation. (World Chiro Expo, Inc.’s
Articles of Incorporation, DE 17-4.)
5) A webpage indicating that the SINUSAVE.COM website redirects users to a website
for “worlddentalexpo.com” (Worlddentaexpo.com Webpage, DE 17-7.)
6) The articles of incorporation for World Dental Expo, Inc. which states it is Florida
corporation and lists A. Fuhr as director of the corporation. (World Dental Expo, Inc.’s
Articles of Incorporation, DE 17-5.)
4
7) The articles of incorporation for Global Healthcare Expo, Inc. which states its principal
office is in Boca Raton, Florida and lists A. Fuhr as manager. (Global Healthcare Expo,
LLC’s Articles of Incorporation, DE 17-6.)
D. Defendants’ Rebuttal Evidence
TGGI retained and compensated the attorney who prepared and filed the trademark
assignment of SINUSAVE. (A. Fuhr Aff. ¶ 3, DE 25-1; J. Fuhr Aff. II ¶ 5, DE 25-2.) Neither
CW nor J. Fuhr participated in any discussions regarding the assignment of the trademark from
TGGI in Florida. J. Fuhr did participate in discussions regarding the assignment while in
Missouri. (J. Fuhr Aff. II ¶ 7.) Neither CW nor J. Fuhr advertised the SINUSAVE product or
brand through websites or other media. (J. Fuhr Aff. II ¶ 11.) The SINUSAVE product has not
been in production or sale since May of 2007. (A. Fuhr Aff. ¶ 13.) The SINUSAVE domain
name has been owned by A. Fuhr since 2003. (A. Fuhr Aff. ¶ 5.) Websites, advertisements or
domain names regarding SINISAVE found on the internet today are the product of TGGI’s prior
marketing of the SINUSAVE product. TGGI neglected to insure those websites and
advertisements were taken off the internet when TGGI stopped production and sale of
SINUSAVE. (A. Fuhr Aff. ¶ 9.)
World Dental Expo, Inc. is a Florida corporation owned by Global Healthcare Expo,
LLC. (J. Fuhr Aff. II ¶ 20.) Global Healthcare Expo, LLC is a Florida limited liability company
partially owned and operated by A. Fuhr. (A. Fuhr Aff. ¶ 10; J. Fuhr Aff. II ¶ 12.) Neither J.
Fuhr nor CW own or operate Global Healthcare Expo, LLC. (A. Fuhr Aff. ¶ 11; J. Fuhr Aff. II ¶
13.) Neither CW nor J. Fuhr own or control the World Dental Expo, Inc website. (J. Fuhr Aff. II
¶ 22.) Neither CW nor J. Fuhr have control or ownership of World Chiro Expo, Inc. (A. Fuhr
5
Aff. ¶ 17; J. Fuhr Aff. II ¶ ¶17-18.) Despite his title on the World Chiro Expo website, J. Fuhr
agreed to be on the website simply as an accommodation to his father because J. Fuhr is an
expert in chiropractic medicine. (J. Fuhr Aff. II ¶ 16.)
E. Plaintiffs’ Sur-Rebuttal Evidence
Plaintiffs received a May 5, 2008 email from A. Fuhr stating that with respect to TGGI,
there has been “one small order over the past two weeks.” (May 5, 2008 email, DE 26-3.) There
is an April 21, 2009 document indicating that a Florida attorney filed a document stating that the
SINUSAVE mark has been in continuous use for the past five years. (Declaration of Use, DE 265.) CW was administratively dissolved on April 1, 2009 and told it could not conduct any
business except that necessary to wind up and liquidate. (Administrative Dissolution, DE 26-8.)
On July 29, 2009, IP Genesis LLC conveyed a patent to CW. (Patent Assignment, DE 26-6.) J.
Fuhr filed an application for reinstatement of the corporation CW in Missouri on December 6,
2009. (Reinstatement Application, DE 26-9.) A screenshot of a webpage from
SINUSAVE.COM redirects to worlddentalexpo.com/sinusave. (Screenshot, DE 26-11.)
III. Legal Standard
The plaintiff’s burden in alleging personal jurisdiction requires that the plaintiff establish
a prima facie case of personal jurisdiction over a nonresident defendant. A prima facie case is
established if the plaintiff presents enough evidence to withstand a motion for directed verdict.
The district court must accept the facts alleged in the complaint as true, to the extent they are
uncontroverted by the defendant's affidavits. If by defendant’s affidavits or other competent
evidence, defendant sustains the burden of challenging plaintiff’s allegations, the plaintiff must
substantiate the jurisdictional allegations in the complaint by affidavits, testimony or documents.
6
However, where the evidence conflicts, the district court must construe all reasonable inferences
in favor of the plaintiff. See Future Tech. Today, Inc., v. OSF Healthcare Sys., 218 F.3d 1247,
1249 (11th Cir. 2000); Robinson v. Giarmarco & Bill, P.C., , 74 F.3d 253, 255 (11th Cir. 1996)
(citing Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990)); Exhibit Icons, LLC v. XP Cos.,
LLC, 609 F. Supp. 2d 1282, 1291-92 (S.D. Fla. 2009).
Rule 8(a) of the Federal Rules of Civil Procedure requires “a short and plain statement of
the claims” that “will give the defendant fair notice of what the plaintiff's claim is and the ground
upon which it rests.” Fed. R. Civ. P. 8(a). The Supreme Court has held that “[w]hile a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a
plaintiff's obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.
Factual allegations must be enough to raise a right to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009) (quotations and citations omitted). "A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Id. Thus, "only a complaint that states a
plausible claim for relief survives a motion to dismiss." Id. at 1950. When considering a motion
to dismiss, the Court must accept all of the plaintiff's allegations as true in determining whether a
plaintiff has stated a claim for which relief could be granted. Hishon v. King & Spalding, 467
U.S. 69, 73 (1984).
7
IV. Discussion
Plaintiffs have alleged two possible bases for asserting personal jurisdiction over J. Fuhr
and CW: (1) Defendants have committed the tort of conversion (Pl. Resp. at 5) and (2)
Defendants are subject to general personal jurisdiction (Pl. Resp. at 8).2
The Court will first address Plaintiffs’ claim that the tort of conversion provides personal
jurisdiction pursuant to the Florida long-arm statute. Florida Statutes § 48.193(1)(b).
Conversion is a tort that can establish personal jurisdiction over a defendant in Florida. Future
Tech., 218 F.3d at 1250; Russo v. Fink, 87 So. 3d 815, 818 (Fla. Dist. Ct. App. 2012); Joseph v.
Chanin, 869 So. 2d 738, 740 (Fla. Dist. Ct. App. 2004); Merkin v. PCA Health Plans of Florida,
Inc., 855 So. 2d 137, 140 (Fla. Dist. Ct. App. 2003). That stated, there can be no personal
jurisdiction if the tort claim is not properly alleged. Wendt v. Horowitz, 822 So. 2d 1252, 1260
(Fla. 2002) (“[W]here the threshold question of personal jurisdiction turns on whether a tort is
committed in Florida, the court necessarily must review the allegations of the complaint to
determine if a cause of action is stated.”); Luigino’s International, Inc. v. Miller International
Foods, Inc., No. 6:07-cv-769-Orl-31KRS, 2007 WL 1576363, at * 2 (M.D. Fla. May 30, 2007)
(same). As shown infra, Plaintiffs have not properly alleged a claim for conversion, thus there
2
Significantly, Plaintiffs failed to allege any grounds to assert personal jurisdiction over
J. Fuhr and CW in the Complaint. That, in and of itself, is reason to grant the motion to dismiss
for lack of personal jurisdiction. See Diamond Crystal Brands, Inc. v. Food Movers Intern., Inc.,
593 F.3d 1249, 1257 (11th Cir. 2010) (“A plaintiff seeking the exercise of personal jurisdiction
over a nonresident defendant bears the initial burden of alleging in the complaint sufficient facts
to make out a prima facie case of jurisdiction.”) (quoting United Techs. Corp. v. Mazer, 556 F.3d
1260, 1274 (11th Cir.2009)). For the purpose of having a complete record, however, the Court
will discuss the two grounds identified by Plaintiffs in their response memorandum.
8
can be no personal jurisdiction based on this tort. 3
Next, the Court will address whether Plaintiffs have established general personal
jurisdiction over Defendants. In order for a court to exercise general jurisdiction in Florida, the
contacts must be especially pervasive and substantial to satisfy section two of the Florida longarm statute 48.193. General Cigar Holdings, Inc. v. Altadis S.A., 205 F. Supp. 2d 1335, 1343
(S.D. Fla. 2002); see Florida Statutes.§ 48.193(2). The general jurisdiction provision of the
statute states:
A defendant who is engaged in substantial and not isolated activity within this
state, whether such activity is wholly interstate, intrastate, or otherwise, is subject
to the jurisdiction of the courts of this state, whether or not the claim arises from
that activity.
Id. General jurisdiction arises from a defendant's contacts with Florida that are not directly
related to the cause of action being litigated and connexity between a defendant’s activities and
the cause of action is not required. Consolidated Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286,
1292 (11th Cir. 2000). The "substantial and not isolated activity" requirement of the long-arm
statute has been recognized by Florida courts as the functional equivalent of the continuous and
systematic contact requirement for general jurisdiction under the Fourteenth Amendment Due
Process Clause as discussed in Helicopteros Nacionales de Colombia S.A. v. Hall, 466 U.S. 408,
413-416 (1984); see Woods v. Nova Cos. Belize, Ltd., 739 So.2d 617, 620 (Fla. Dist. Ct. App.
1999); Achievers Unlimited, Inc. v. Nutri Herb, Inc., 710 So.2d 716, 720 (Fla. Dist. Ct. App.
3
Based on this finding, there is no reason to examine whether Plaintiffs have alleged that
sufficient minimum contacts exist to satisfy the Due Process Clause of the Fourteenth
Amendment and whether maintenance of the suit offends “traditional notions of fair play and
substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); Venetian
Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla. 1989).
9
1998). A finding that a defendant’s activities satisfy section 48.193(2)’s requirements also
necessitates a finding that minimum contacts exist. See Universal Carribean Estab. v. Bard, 543
So.2d 447, 448 (Fla. Dist. Ct. App. 1989). Therefore, the analysis of jurisdiction under section
48.193(2) and the Due Process clause merge.
As there is no requirement of a connection between the defendant’s activities and the
cause of action, the Due Process requirements are much more stringent for general personal
jurisdiction than for specific personal jurisdiction. Due Process requires a showing of
substantial, persistent, continuous, and systematic business contacts between the defendant and
the forum state. Helicopteros, 446 U.S. at 414 nn.8, 9; Ruiz de Molina v. Merritt & Furman Ins.
Agency, Inc., 207 F.3d 1351, 1357 n.4 (11th Cir. 2000); Meier v. Sun International Hotels, Ltd.,
288 F.3d 1264, 1274 (11th Cir. 2002); Borg-Warner Acceptance Corp. v. Lovett & Tharpe, Inc.,
786 F.2d 1055, 1057 (11th Cir. 1986). “The substantial connection between a defendant and the
forum state must come about by an action of the defendant purposefully directed toward the
forum state.” Nida Corp. v. Nida, 118 F. Supp. 2d 1223, 1229 (M.D. Fla. 2000) (citing Asahi
Metal Indus. Co. v. Superior Ct. of Cal., Solano Cty., 480 U.S. 102, 108-09 (1987)). The
defendant’s contacts “must be so extensive to be tantamount to [a defendant] being
constructively present in the state to such a degree that it would be fundamentally fair to require
it to answer in [the forum state’s courts] in any litigation arising out of any transaction or
occurrence taking place anywhere in the world.” Baker v. Carnival Corp., No. 06-21527-CIVHUCK, 2006 WL 3360418, at * 2 (S.D. Fla. Nov. 20, 2006) (citing Purdue Research Foundation
v. Sanofi Synthelabo, S.A., 338 F.3d 773, 787 (7th Cir. 2003)).
Here, the only evidence produced by Plaintiffs that link these Defendants to Florida is a
10
page from the website for World Chiro Expo, Inc. that identifies J. Fuhr as the “chief operating
officer” of World Chiro Expo, Inc.4 Hence, the record is devoid on any evidence that CW has
any contacts with the State of Florida. As to J. Fuhr, he attested in his affidavit that he has no
ownership interest in World Chiro Expo, Inc., he does not own real property in Florida, he does
not maintain bank accounts in Florida and he does not conduct any business in Florida. Plaintiffs
have not presented any evidence to rebut J. Furh testimony. A person may be the chief operating
officer of a Florida corporation and never personally engage in any business activities in this
state. Simply put, an out-of -state defendant, with no other contacts other than the title of “chief
operating officer” of a Florida corporation, cannot be found to have established substantial,
persistent, continuous, and systematic business contacts in Florida. Indeed, Plaintiffs have
provided nothing that shows any other contacts with Florida stemming from J. Fuhr’s capacity as
chief operating officer.
The facts of the instant case are in stark contrast to Autonation, Inc. v. Whitlock, 276 F.
Supp. 2d 1258 (S.D. Fla. 2003). There, the court addressed whether a Texas resident who had
previously worked for the plaintiff in Florida could be found to meet the requirements for general
personal jurisdiction. After the plaintiff transferred the defendant from Florida in 1998, the
defendant became the general manager for the plaintiff in Georgia before moving to Texas. Id. at
1261. Between 1998 and 2003, the defendant attended six business meetings in Florida, had
ongoing contacts with the Florida plaintiff via communications of customer complaints and
4
The Court notes that J. Fuhr denies that he actually holds this position and claims he has
simply allowed himself to be on the website as an “accommodation” to his father. The Court
will, however, view the facts in the light most favorable to Plaintiffs and accept for purposes of
this motion that J. Fuhr holds the title of chief operating officer of World Chiro Expo.
11
engaged in the transmission of business information in the form of bulletins, books, posters,
notices, reports and the transmission of business systems and polices. Id. at 1263. Based on
these acts, the court found that the defendant collectively had enough activities to assert personal
jurisdiction over him. Id. (citing Nordmark Presentations, Inc. v. Harman, 557 So.2d 649, 651
(Fla. Dist. Ct. App. 1990) (finding personal jurisdiction over the nonresident defendant based
upon the defendant's attendance at three business meetings in Florida, as well as the defendant's
receipt of information and direction regarding the defendant's work over two year period)).
Plaintiff has not presented any evidence of J. Fuhr’s activities in the State of Florida approaching
the requisite standard.
Next, the Court will address the conversion claim. Conversion is an act of dominion
wrongfully asserted over another’s property which is inconsistent with the right of the owner and
deprives the owner of the right of possession. Warshall v. Price, 629 So.2d 903, 904 (Fla. Dist.
Ct. App. 1993); City of Cars, Inc. v. Simms, 526 So. 2d 119, 120 (Fla. Dist. Ct. App. 1988);
United American Bank of Central Florida, Inc. v. Seligman, 599 So. 2d 1014, 1016 (Fla. Dist. Ct.
App. 1992). In order to recover for conversion, the plaintiff must demonstrate a right to property.
It may also be demonstrated by a demand for the return of that property and the defendants'
refusal to return the property. Mayo v. Allen, 973 So. 2d 1257, 1259 (Fla. Dist. Ct. App. 2008);
Goodwich v. Malowney, 157 So. 2d 829, 832 (Fla. Dist. Ct. App. 1963).
Here, Plaintiffs have failed to demonstrate a right to the trademark. Based on the
allegations of the Complaint, at the time the trademark was transferred, TGGI, and not Plaintiffs,
was the owner of the trademark and TGGI voluntarily transferred the trademark to CW.
Plaintiffs, however, point to their security interest in the shares of TGGI. Even assuming
12
Plaintiffs have this security interest, it does not establish that they are owners of TGGI and
therefore owners of the trademark. Instead, Plaintiffs had a right to enforce that security interest
in the shares of TGGI, which was the collateral, not the trademark, which was not the collateral
and therefore not subject to the security interest. See Seaman v. Clearwater Oaks Bank, 469 So.
2d 246, 247 (Fla. Dist. Ct. App. 1985) (“conversion is appropriate remedy for a secured party to
bring against a third party when its collateral has been disposed of by the debtor”) (emphasis
added). Based on the facts alleged, Plaintiffs did not have a right to the trademark, an asset of
the corporation. Because a claim for conversion requires that the plaintiff have a right to the
property, and the Complaint does not establish this right, the conversion claim fails as a matter of
law.5 Since Plaintiff has failed to state a claim for a tort committed in Florida by Defendants,
there is no basis for the exercise of personal jurisdiction over them under Florida’s long arm
statute. Furthermore, based on the evidence adduced during discovery, the Court finds that
amendment of the conversion claim would be futile.6
V. Conclusion
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1)
Defendants’ Motion to Dismiss (DE 15) is GRANTED. This Complaint is
dismissed without prejudice based on the lack of personal jurisdiction.
5
Plaintiffs cite to F.D.I.C. v. Kerr, 637 F. Supp. 828 (W.D.N.C. 1986), which the Court
finds unpersuasive. That was not a conversion case. The FDIC brought claims based in the
federal securities laws and RICO. Plaintiffs’ reliance on Cannon v. Parker, 152 F.2d 706 (5th
Cir. 1945) is equally misplaced, as it too is not a conversion case. (DE 26 at 3.)
6
At best, Plaintiffs have a fraudulent transfer claim. The record evidence, however,
shows that any actions taken by Defendants relative to their acceptance of the assignment of the
trademark occurred in Missouri, not Florida. J. Fuhr. Aff. I, ¶ 21; J. Fuhr Aff. II, ¶ 7. Thus, these
Defendants also would not be subject to a fraudulent transfer claim in Florida.
13
2)
Plaintiffs’ Cross-Motion for Leave to File an Amended Complaint (DE 18) is
DENIED.
3)
Plaintiffs’ Motion for Leave to File a Sur-Reply (DE 26) is GRANTED.
4)
The Court will separately issue judgment for Defendants.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 29th day of April, 2013.
______________________________________
KENNETH A. MARRA
United States District Judge
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?