Aflac Inc v. SDT AIR LLC

Filing 21

ORDER denying 18 Motion to Dismiss. Ordered by Judge Clay D. Land on 10/17/2013 (jcs)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
Aflac, Inc.,

*

Plaintiff,

*

vs.

*

SDT Air, LLC,

*

CASE NO. 4:13-CV-63 (CDL)

Defendant.

*

O R D E R
Plaintiff
corporate jet.
it.

Aflac,

Inc.

(“Aflac”)

wanted

to

sell

its

Defendant SDT Air, LLC (“SDT Air”) wanted to buy

SDT Air thought they had a deal.

Aflac thinks otherwise.

Their dispute has given rise to two separate lawsuits in two
different federal courts.

Aflac won the race to the courthouse

and filed this action in this Court for declaratory judgment
pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 et
seq.

Aflac asks the Court to declare that Aflac had no legal

obligation to continue to negotiate, that Aflac violated no duty
toward SDT Air in withdrawing from further negotiations, and
that Aflac is not liable for any of SDT Air’s incurred expenses.
SDT Air subsequently filed its action for damages in the United
States District Court for the Eastern District of Louisiana.
SDT Air prefers to litigate this dispute in Louisiana and has
filed

a

motion

to

dismiss

this

Georgia

action

for

lack

of

personal

jurisdiction.

Def.’s

Mot.

to

Dismiss,

ECF

No.

18.

Alternatively, it seeks a dismissal, stay or transfer of this
action in favor of the Louisiana action.

Id.

For the reasons

described in the remainder of this Order, the Court denies SDT
Air’s motion.
JURISDICTIONAL FACTS
SDT

Air’s

motion

depends

upon

whether

it

“transacted

business” in Georgia and the extent of its “contacts” with this
state.

Therefore,

the

Court

takes

a

detailed

look

at

the

alleged jurisdictional facts in the present record to evaluate
the pending motion.

These facts are taken from the allegations

in the Complaint and the subsequent affidavits filed in relation
to the pending motion.
This dispute arises from negotiations to purchase Aflac’s
1995 Falcon 50 jet aircraft (“Aircraft”) for $2.8 million.

The

Aircraft was stored at all relevant times in a hangar at the
municipal

airport

headquarters

and

in

Columbus,

principal

place

Georgia.
of

Aflac

business

in

has

its

Columbus,

Georgia, and its employees who participated in the negotiations
regarding

the

offices.

In

Aircraft
early

worked

2013,

at

Aflac

Aflac’s
retained

Columbus,
Guardian

Georgia
Jet,

LLC

(“Guardian Jet”), an aircraft broker in Connecticut, to sell the
Aircraft.

2

On February 21, 2013, Guardian Jet initiated contact with
SDT Air, a Louisiana company, to sell the Aircraft.
through

its

Louisiana

attorney

Michael

Hubbell,

SDT Air,
engaged

in

negotiations with Guardian Jet to purchase the Aircraft.

Pl.’s

Resp.

Pl.’s

in

Opp’n

to

Def.’s

Mot.

to

Dismiss

Resp.], Mikolay Aff. ¶ 6, ECF No. 19-1.

[hereinafter

SDT Air sent a proposed

letter of intent to purchase the Aircraft to Guardian Jet, who
forwarded it to Aflac’s legal department in Columbus, Georgia.
Id. ¶ 7-8.

SDT Air’s offer identified Aflac as the owner of the

Aircraft and Kriss Clonginger as Aflac’s CFO and included a term
to inspect the Aircraft at its “current location.”

Pl.’s Resp.

Ex. 6, Initial Letter of Intent ¶ 6, ECF No. 19-10.
On

February

department

in

25,

2013,

Columbus,

an

Aflac

Georgia,

employee

Jenette

in

Mathai

the

legal

(“Mathai”),

submitted several changes to the proposed letter of intent to
SDT Air through Guardian Jet.

Mikolay Aff. ¶¶ 8-9.

One change

advised SDT Air that the Aircraft’s “home base” is Columbus,
Georgia and that its requested initial inspection would thus
take place in Columbus, Georgia.
ECF No. 19-2.

Pl.’s Resp., Mathai Aff. ¶ 7,

Guardian Jet incorporated all requested changes

into a memo and sent it to SDT Air.

Pl.’s Resp. Ex. 7, Memo

from M. Mikolay to M. Hubbell 2, ECF No. 19-11.

On February 27,

2013, SDT Air executed a letter of intent incorporating most,
but not all, of those changes.

Pl.’s Resp. Ex. 1, Email from M.

3

Hubbell to M. Mikolay et al. (Feb. 27, 2013), ECF No. 19-5 at 2.
An email the next day refers to SDT Air’s “right to send a
certified

mechanic

to

[Aflac’s]

facility”

to

conduct

inspection in section 6 of the letter of intent.

the

Pl.’s Resp.

Ex. 1, Email from M. Mikolay to M. Hubbell et al. (Feb. 28,
2013), ECF No. 19-5 at 1.
On

March

1,

2013,

Guardian

Jet

sent

invitations

for

a

conference call to SDT Air representatives, Guardian employees,
and two Aflac employees: Mathai and Mike Scheller (“Scheller”).
Def.’s Mot. to Dismiss, Hubbell Aff. ¶¶ 9-14, ECF No. 18-9;
Mikolay

Aff.

¶

13.

Mathai

was

based

in

Aflac’s

corporate

offices in Columbus, Georgia, and Scheller was Aflac’s Aviation
Director in Columbus, Georgia.
Scheller

Aff.

¶

1,

ECF

No.

Mathai Aff. ¶ 1; Pl.’s Resp.,
19-3.

When

SDT

Air

sought

to

reschedule the time of the conference call, it replied to all
recipients including Mathai and Scheller in Columbus, Georgia.
Pl.’s Resp. Ex. 3, Email from M. Hubbell to M. Hubbell et al.
(Mar. 1, 2013), ECF No. 19-7 at 2.

Although SDT Air admits it

sent the emails to Mathai and Scheller, SDT Air claims it was
not aware at the time that those Aflac employees were located in
Columbus, Georgia.

Hubbell Aff. ¶ 12.

The following day, SDT

Air participated in the conference call with Guardian and the
Georgia-based Aflac employees, but it maintains that even at
that time, it was unaware that anyone on the conference call was

4

located in Georgia.
Mathai

personally

agreements.

Id. ¶ 14.

agreed

to

During the conference call,

make

Mathai Aff. ¶ 10.

revisions

to

reflect

final

She did so and sent the final

version to Guardian Jet, who forwarded it to SDT Air, copying
Mathai and the others in the “working group.”

Pl.’s Resp. Ex.

4, Email from M. Mikolay to M. Hubbell et al. (Mar. 4, 2013),
ECF No. 19-8 at 1.

Scheller was also on the call, which lasted

approximately 45 minutes.

Scheller Aff. ¶ 6.

On March 4, 2013, SDT Air copied Mathai and Scheller on
three emails to Guardian Jet, one of which included the final
letter of intent executed by SDT Air to be counter executed by
Aflac.

Pl.’s Resp. Ex. 9, Emails from M. Hubbell to M. Mikolay

et al. (Mar. 4, 2013, 5:57 PM, 2:37 PM, & 12:38 PM), ECF No. 1913 at 1-3.

The letter of intent provided for a purchase price

of $2.8 million and provided that SDT Air “will examine the
Aircraft and records with its own FAA certified A&P mechanic
prior

to

the

execution

of

the

subsequent

Aircraft

Purchase

Agreement at the Aircraft’s home base in Columbus, Georgia[,]”
that SDT Air and Aflac “shall mutually agree on the scope and
depth of the aforementioned review prior to the initiation of
the

examination[,]”

that

SDT

Air

submit

a

$150,000

escrow

payment to Aflac’s agent within 2 days, that both parties keep
all

information

strictly

confidential,

and

that

SDT

Air

cooperate with Aflac to structure the sale to have favorable tax

5

implications, including making amendments to agreements.

Pl.’s

Resp. Ex. 8, Final Letter of Intent ¶¶ 1, 5, 6, 8, 10, ECF No.
19-12.

Aflac executed the letter of intent and escrow agreement

in Columbus, Georgia and sent them to SDT Air through Guardian
Jet.

Id. & Escrow Agreement, ECF No. 19-12 at 1; Pl.’s Resp.

Ex. 10, Email from M. Mikolay to M. Hubbell (Mar. 5, 2013), ECF
No. 19-14.

In accordance with the agreements, SDT Air deposited

$150,000 with Aflac’s escrow agent in Oklahoma which would be
released to Aflac at closing. 1

Escrow Agreement 1.

Shortly after the foregoing activities, a Southwest airline
pilot acting on SDT Air’s behalf called Scheller directly in
Columbus, Georgia to gather information for SDT Air’s upcoming
inspection of the Aircraft in Columbus, Georgia.
¶

7.

Scheller

answered

some

questions

and

Scheller Aff.
advised

him

to

contact Dale Haughton, Aviation Maintenance Director at Aflac.
Id.

The pilot then called Haughton in his office in Columbus,

Georgia

once

or

twice

to

make

arrangements

for

the

Aircraft

inspection in Columbus, Georgia, explaining that SDT Air hired
Boca

Aircraft

aircraft

Maintenance

inspector

inspection. 2

to

in

travel

Florida
to

to

locate

Columbus,

a

Georgia

certified
for

the

Pl.’s Resp., Haughton Aff. ¶ 5, ECF No. 19-4.

Haughton called Boca Aircraft Maintenance, which told him to
1

Because the deal never closed, the funds never entered Georgia.
Hubbell Aff. ¶ 16.
2
The inspection never occurred. Def.’s Mot. to Dismiss, Russell Aff.
¶ 9, ECF No. 18-12.

6

contact Richard Dadasiewicz, who had been hired to complete the
inspection in Columbus, Georgia on behalf of SDT Air.

Id. ¶ 6.

Haughton

was

called

Dadasiewicz,

who

confirmed

that

he

the

third-party inspector working for SDT Air and that he planned to
spend five days in Columbus, Georgia reviewing the Aircraft and
its log books.

Id. ¶ 7.

to Columbus, Georgia.

The two discussed travel arrangements

Id.

Haughton later emailed Dadasiewicz

to inform him that he was approved for access to Aflac’s records
on the Aircraft in the computerized aircraft maintenance program
(CAMP).

Pl.’s Resp. Ex. 12, Email from D. Haughton (Mar. 7,

2013), ECF No. 19-16.
On

March

6,

2013,

Aflac

sent

purchase agreement for review.

SDT

Air

a

draft

of

the

Def.’s Mot. to Dismiss Ex. F,

Draft Aircraft Purchase Agreement, ECF No. 18-7.

But then on

March 7, 2013, Aflac informed SDT Air, through Guardian Jet, of
Aflac’s intent not to sell the Aircraft.
That

same

day,

SDT

Air

sent

a

demand

Mikolay Aff. ¶ 18.
letter

specifically

addressed to “Jenette Mathai Senior Associate General Counsel
Legal Affairs AFLAC Incorporated 5290B Armour R[oa]d, Hang[a]r
20 Columbus, Georgia 31909” via certified mail demanding that
Aflac continue negotiations with SDT Air.

Pl.’s Resp. Ex. 5,

Letter from M. Hubbell to J. Mathai (Mar. 7, 2013), ECF No. 19-9
at 2-3 [hereinafter Demand Letter].

SDT Air also resent the

Demand

and

Letter

via

emails

to

Mathai

7

Aflac’s

attorney

in

Florida.

Pl.’s Resp. Ex. 5, Email from K. Whalen to J. Mathai &

S. Lapayowker (Mar. 8, 2013), ECF No. 19-9 at 1.

On March 9,

2013, SDT Air sent Aflac another email estimating damages of
$354,950.00 for Aflac’s alleged breach of its obligations under
the letter of intent.
to

S.

Lapayowker

Pl.’s Resp. Ex. 11, Email from M. Hubbell

(Mar.

9,

2013),

ECF

No.

19-15

at

1-2

[hereinafter Second Demand Letter].
DISCUSSION
When a plaintiff seeks to have a court exercise personal
jurisdiction over a nonresident defendant, that plaintiff “bears
the initial burden of alleging in the complaint sufficient facts
to

make

out

a

prima

facie

case

of

jurisdiction.”

Diamond

Crystal Brands, Inc. v. Food Movers Int’l, Inc., 593 F.3d 1249,
1257

(11th

evidence
shifts

Cir.

2010).

challenging

back

to

jurisdiction.”

the
Id.

If

the

jurisdiction,
plaintiff

to

defendant
“the
produce

submits

burden

affidavit

traditionally

evidence

supporting

In this case, both parties have submitted

affidavits in support of their positions.
To determine whether personal jurisdiction exists over SDT
Air, the Court engages in a two-step inquiry.

First, the Court

must decide whether jurisdiction exists under Georgia’s long-arm
statute, O.C.G.A. § 9-10-91; and if it does, the Court next
evaluates whether the exercise of jurisdiction comports with the

8

Due Process Clause of the Fourteenth Amendment to the United
States Constitution.
I.

Id. at 1257-58.

Georgia’s Long-Arm Statute
Georgia’s long-arm statute authorizes jurisdiction over a

nonresident who “transacts any business within [Georgia]” for
any

claims

against

the

transaction of business.

nonresident

that

arise

O.C.G.A. § 9-10-91(1).

from

that

In this case,

the Court must determine whether SDT Air’s acts regarding its
attempted purchase of Aflac’s Aircraft, which have given rise to
this declaratory judgment action, amount to the “transact[ion
of] any business” in Georgia for purposes of the Georgia longarm statute.
interpreted

Id.

The term “transact” in the statute has been

according

to

its

plain

meaning

as

including

negotiating or “carry[ing] on business,” and the term “any” has
been

interpreted

broadly

to

mean

“to

any

extent”

Diamond Crystal, 593 F.3d at 1261, 1265 n.18.

or

degree.

To determine

whether a nonresident has carried on business to any extent in
Georgia, the Court examines both the tangible physical acts that
occurred in the state as well as any intangible acts that may
have

occurred

outside

conduct in the state.

the

state

but

have

some

relation

to

Id. at 1264 (citing Innovative Clinical &

Consulting Servs., LLC, v. First Nat’l Bank of Ames, 279 Ga.
672, 674-76, 620 S.E.2d 352, 355-56 (2005)).
outside

the

state

that

may

9

be

Acts that occur

considered

include

the

transmission of mail or telephone calls from outside the state
into Georgia.

Id.

Ultimately, to find that a nonresident has

transacted business in Georgia, the Court must find that “the
nonresident

defendant

has

purposefully

consummated some transaction in Georgia.”

done

some

act

or

Id. (quoting Aero Toy

Store, LLC v. Grieves, 279 Ga. App. 515, 517, 631 S.E.2d 734,
737 (2006)) (internal quotation marks omitted).
The Court finds the Eleventh Circuit’s analysis in Diamond
Crystal

instructive

here.

In

Diamond

Crystal,

the

Court’s

thorough analysis addressed the requirements of Georgia’s longarm statute and the Constitution’s Due Process Clause.
that

jurisdiction

existed

under

the

transaction

of

Finding
business

prong of Georgia’s long-arm statute, the Court explained that a
California distributor had transacted business within Georgia by
(a)

sending

purchase

orders

to

a

Delaware

company’s

manufacturing facility in Georgia through the Delaware company’s
broker

in

California,

(b)

requesting

delivery

by

“customer

pickup” at the Georgia plant and then directing third parties to
accept delivery in Savannah, Georgia, (c) taking legal title
pursuant to the F.O.B. Savannah UCC term, and (d) “promis[ing]
to pay money into Georgia on the two transactions in question.”
Id. at 1266-67.

The fact that the Delaware company’s California

broker first solicited the sales and all negotiations took place
in

California

either

in

person

10

or

through

telephone

conversations

between

representatives

for

the

broker

nonresident defendant did not defeat jurisdiction.
As

the

Court

simplified
includes

explained,

to

a

all

activity.

“transaction

single

the

factor

or

circumstances

Id. at 1266-67.

of

but

surrounding

the

Id. at 1255.

business”

checklist

and

cannot

be

necessarily

the

business

Those circumstances included the

fact that although the purchase orders were routed through the
seller’s intermediary in California, they were ultimately routed
to a manufacturer in Georgia.
observed

that

defendant’s
customers

part

contract

would

manufacturer.

of

the

performance

occurred

accept

Id. at 1265.

in

delivery

Georgia
in

of

The Court also
the

nonresident

because

third-party

Georgia

from

the

Georgia

Id.; see also Gold Kist, Inc. v. Baskin-Robbins

Ice Cream Co., 623 F.2d 375, 380 (5th Cir. 1980).
Here, SDT Air engaged in negotiations and communications
directly (and indirectly through an out-of-state intermediary)
with

a

Georgia

company

for

company’s asset in Georgia.
the

contact

through

its

the

purchase

of

that

Georgia

The fact that Aflac first initiated

out-of-state

broker

does

not

defeat

jurisdiction or diminish the quality of SDT Air’s transaction of
business in Georgia.

SDT Air specifically sent a letter of

intent to purchase the Georgia Aircraft to the Georgia company
(Aflac) through that company’s broker.
Crystal

purchase

orders

containing

11

Similar to the Diamond

specific

terms

referencing

the seller’s Georgia manufacturing facility and requiring part
performance

of

the

contract

in

Savannah,

Georgia,

SDT

Air’s

initial letter of intent named Aflac specifically as the seller
and its final letter of intent included a term requiring SDT Air
to send its mechanic to inspect the Aircraft and its records at
the Aircraft’s “home base in Columbus, Georgia.”

Routing SDT’s

letter of intent to purchase the Aircraft through Aflac’s broker
is analogous to routing purchase orders through an intermediary,
which according to the Court in Diamond Crystal did not diminish
the nature of the nonresident’s transaction of business in the
state to which the conduct was ultimately directed.
1265.

593 F.3d at

Sending the documents through Aflac’s broker does not

negate the fact that SDT Air knowingly attempted to purchase the
Aircraft from Aflac in Georgia and not from Guardian Jet, the
Connecticut
argument

broker.

that

it

The
never

Court

finds

purposefully

unconvincing
transacted

SDT

Air’s

business

in

Georgia because it directly transacted only with Aflac’s broker
in Connecticut or Aflac’s lawyer in Florida. 3
In

its

opposition

to

jurisdiction,

SDT

Air

ignores

its

direct contact with Aflac in Georgia during the negotiations.
Those contacts include e-mail correspondence, a conference call,
3

SDT Air’s insistence that its transactions
never with Aflac is squarely contradicted
letters of intent drafted by SDT Air naming
Aircraft. It also seems incompatible with
suing Aflac, not Guardian Jet, for damages
negotiations.

12

were with Guardian Jet and
by the initial and final
Aflac as the seller of the
the fact that SDT Air is
resulting from the failed

communications to arrange for an inspection of the Aircraft in
Georgia, and a letter sent to Aflac in Georgia demanding that
the

negotiations

Georgia

to

corporation

continue.

purchase
in

an

Georgia

By

engaging

Aircraft
with

in

this

conduct

located
of

part

in

performance

the

Georgia

in

from
of

a

the

contract to occur in Georgia (including inspection and delivery
of the Aircraft), SDT Air transacted business in Georgia for
purposes of Georgia’s long-arm statute.
The Court also observes that the fact that the transaction
was not ultimately consummated does not eliminate jurisdiction.
See id. at 1266 (considering implied promises to pay even if
they were not actually completed).
of

intent

contemplating

the

SDT Air signed two letters

performance

of

surrounding the purchase of Aflac’s Aircraft.

various

terms

While SDT Air

never physically entered nor paid money in Georgia, the letter
of intent to purchase Alfac’s Aircraft contemplated that SDT Air
would do so if the transaction had been consummated.
In

summary,

SDT

Air

chose

to

engage

in

negotiations

to

purchase an Aircraft from Aflac, and SDT Air continued these
negotiations

after

Columbus, Georgia. 4

finding

out

the

Aircraft

was

based

in

SDT Air chose to execute the letter of

4

The Court does not find it credible that SDT Air was unaware of the
transaction’s connection to the state of Georgia. As a sophisticated
commercial enterprise with the capability of engaging in a multimillion dollar purchase of a corporate jet located in Columbus,
Georgia, SDT Air surely knew that the owner of that jet as well as the

13

intent knowing this, chose to submit escrow payments intended to
be

transferred

purchase,

chose

to

Aflac

to

make

upon

successful

arrangements

to

completion
send

a

of

mechanic

the
to

Georgia on behalf of SDT Air to inspect the Aircraft and its
records, and chose to demand that Aflac continue negotiations or
face a damages suit by sending letters directly addressed to an
employee at Aflac’s legal department in Georgia.

Considering

all the circumstances surrounding SDT Air’s conduct, the Court
finds that SDT Air has transacted business in Georgia within the
meaning of O.C.G.A. § 9-10-91(1).
II.

Due Process
Having found that SDT Air’s conduct satisfies the Georgia

long-arm statute, the Court must next consider whether SDT Air’s
contacts

with

Georgia

are

sufficient

requirements of due process.

to

also

satisfy

the

The Due Process Clause requires

that SDT Air have certain minimum contacts with Georgia which
indicate that it purposefully availed itself of the privilege of
conducting business there by directing activities at residents
of the forum; it also requires a sufficient nexus between those
contacts

and

the

resulting

litigation,

such

that

reasonably anticipate being haled into court there.
(citing

Burger

King

Corp.

v.

Rudzewicz,

471

it

should

Id. at 1267

U.S.

462,

474

two Aflac employees involved in the negotiations had some connection
to Georgia.

14

(1985)).

“Once this showing is made, a defendant must make a

‘compelling
violate

case’

that

traditional

justice.”
because

the

notions

exercise
of

of

fair

jurisdiction

play

and

would

substantial

Id. (citing Burger King, 471 U.S. at 477).

SDT

Air’s

conduct

regarding

the

purchase

of

Again,
Aflac’s

Aircraft is precisely what has given rise to this declaratory
judgment action, the question is whether that conduct includes
the minimum contacts necessary to confer jurisdiction consistent
with due process.
Preliminarily,

the

Court

acknowledges

that

a

nonresident

cannot constitutionally be subjected to jurisdiction in Georgia
simply

because

he

contracted

with) a Georgia resident.
U.S. at 478).

with

(or

attempted

to

contract

Id. at 1268 (citing Burger King, 471

The exercise of jurisdiction over a nonresident

on that basis alone would violate the nonresident’s due process
rights.

Id.

Therefore,

if

the

transaction

giving

rise

to

Aflac’s claims in this action simply involved the signing of
letter of intent, SDT Air could not be compelled to defend that
action in Georgia.

As previously explained, however, SDT Air

did more than simply sign or attempt to sign a letter of intent
with Aflac.
In addition to the letter of intent, SDT Air engaged in
extensive
directly

discussions,
and

through

correspondence,
an

and

intermediary)

15

negotiations

with

Aflac

and

(both
its

Georgia-based employees.
negotiations

was

Georgia,

the

and

a

The subject of those discussions and

multi-million

consummation

of

dollar
any

asset

purchase

located

of

that

in

asset

depended in part upon an inspection of that asset which was to
occur

in

Georgia.

While

SDT

Air’s

contacts

with

Aflac

and

Georgia were restricted to this single attempted transaction,
the transaction was a substantial one and the course of conduct
necessary

to

consummate

it

was

significant

directed to the state of Georgia.

and

purposefully

See Demand Letter 1-2, ECF

No. 19-9 at 2-3 (summarizing the extensive efforts SDT Air has
directed

toward

the

Columbus, Georgia).

purchase

of

the

Aircraft

from

Aflac

in

Similar to the Court’s findings in Diamond

Crystal, the Court finds here that the “quality and nature” of
the transaction’s connection to Georgia is not so random and
fortuitous that it cannot fairly be said that SDT Air should
reasonably
Diamond

anticipate

Crystal,

distinguishable

593
from

being
F.3d

haled
at

those

into

court

1269-70.

cases

finding

in

This
no

Georgia.
case

is

personal

jurisdiction over a passive purchaser of goods where the sole
contact with the forum is an agreement to purchase goods from a
forum resident.

See id. at 1270-71 (distinguishing Borg-Warner

Acceptance Corp. v. Lovett & Tharpe, Inc., 786 F.2d 1055 (11th
Cir. 1986)). 5
5

Borg-Warner involved a passive purchaser who contracted to buy goods

16

SDT

Air’s

contacts

with

Georgia,

including

a

letter

of

intent to purchase a multi-million dollar jet from Aflac located
in Georgia, a requirement that SDT Air send a representative to
Columbus, Georgia for the inspection, and extensive direct and
indirect
employees

negotiations
in

Columbus,

and

other

Georgia,

correspondence
are

sufficient

with
to

Aflac
satisfy

constitutional due process. 6
Since

SDT

Air

transacted

business

in

Georgia

and

had

constitutionally sufficient contacts with the state, the Court
may exercise jurisdiction over SDT Air pursuant to Georgia’s
long-arm statute and consistent with due process.

Accordingly,

SDT Air’s motion to dismiss for lack of personal jurisdiction
must be denied.
III. Dismissal, Stay, or Transfer
SDT Air argues that even if the Court may exercise personal
jurisdiction over it, the Court should abstain from doing so.
In support of this argument, SDT Air maintains that Aflac filed

from the forum resident, but had no other contacts with the forum
except for later sending representatives to return defective goods.
786 F.2d at 1061-62 & n.4. The court noted that there was no term in
the agreement requiring the seller to manufacture the goods in the
forum and that the defendant’s post-sale visit was not designed to
negotiate, oversee, or enforce the contract.
Id. at 1061-63.
In
contrast, SDT Air’s letter of intent did have a term requiring the
performance of the first inspection in Columbus, Georgia.
The
inspection visit was to be part of the performance of the agreement.
Final Letter of Intent ¶ 6.
6
SDT Air has also failed to present a “compelling case” that the
exercise of jurisdiction does not comport with traditional notions of
fair play and substantial justice. 593 F.3d at 1274.

17

this declaratory judgment action in anticipation of SDT Air’s
damages suit filed in Louisiana.

When there are overlapping

lawsuits filed in different federal courts, the Eleventh Circuit
applies a strong presumption in favor of the first-filed action.
Manuel v. Convergys Corp., 430 F.3d 1132, 1135 (11th Cir. 2005).
But there are exceptions to the first-filed rule if compelling
circumstances exist.

Id.

consider

the

is

whether

One of the factors that a Court may
declaratory

judgment

action,

in

an

attempt to engage in improper forum shopping, was first filed in
anticipation of legal proceedings.
For

a

declaratory

anticipatory,

the

party

Id.

judgment

action

generally

to

needs

specifically threatened with legal proceedings.

be
to

improperly
have

been

Id. at 1136-37;

see also Ven-Fuel Inc. v. Dep’t of the Treasury, 673 F.2d 1194,
1195

(11th

Cir.

1982).

But

even

if

a

declaratory

judgment

action is found to be done in anticipation of other litigation,
this factor alone does not mandate that the first-filed action
defer to the later action.

Manuel, 430 F.3d at 1137; Collegiate

Licensing Co. v. Am. Cas. Co. of Reading, Pa., 713 F.3d 71, 79
(11th Cir. 2013).
Here, SDT Air sent Aflac its Demand Letter on Thursday,
March 7, 2013, demanding that Aflac continue negotiations by
Friday March 8, 2013 by 3:00 PM (CST) or else it intended to
file a suit for damages.

Demand Letter 2, ECF No. 19-9 at 3.

18

After subsequent negotiation broke down, Aflac filed this action
for declaratory judgment on Tuesday March 12, 2013, and SDT Air
filed its damages suit in federal court in Louisiana on Thursday
March

14,

2013.

It

is

reasonable

to

conclude

that

Aflac’s

declaratory judgment action was filed in anticipation of SDT
Air’s

impending

lawsuit

against

it.

As

noted,

this

factor,

standing alone, is not necessarily dispositive as to whether SDT
Air has satisfied its burden of establishing that an exception
to

the

first-filed

rule

applies

here.

The

Court

finds

it

appropriate to also consider other factors.
“[T]he forum’s connection with the controversy” is one such
factor

to

be

considered.

Manuel,

430

F.3d

at

1135.

dispute’s connection to this forum is significant.
seller

and

declaratory

judgment

plaintiff,

is

This

Aflac, the
located

in

Georgia; the Aircraft, which is the subject of the letter of
intent

allegedly

potential

breached

witnesses

from

by

Aflac,

Aflac

are

is

located

located

in

in

Georgia;

Georgia;

the

letter of intent was counter executed in Georgia; and partial
performance related to the letter of intent was to occur in
Georgia.

SDT Air is in Louisiana.

Aflac’s aircraft broker is

located in Connecticut, and its escrow agent is in Oklahoma.
One

of

its

attorneys

dispute is in Florida.

with

factual

information

regarding

the

The Court finds that the connection

between the dispute and Georgia is strong and that this factor

19

weighs in favor of applying the first-filed rule.

See id. at

1137 (listing Georgia’s connections to the action and finding
they were not slight or manufactured).

The Court also rejects

SDT Air’s argument that the later-filed damages suit will more
fully resolve the controversy.

Ven-Fuel 673 F.2d at 1195.

SDT

Air will have the opportunity to fully litigate its counterclaim
for

damages

demonstrate

in
how

this
the

action,
relief

and

SDT

available

Air
in

has

failed

to

this

action

is

significantly different than the relief available in Louisiana.
In summary, the anticipatory nature of Aflac’s declaratory
judgment

action

argument

for

an

in

this

Court

exception

to

weighs
the

in

favor

first-filed

of

rule,

SDT

Air’s

but

this

action’s connection to this forum strongly supports having the
action litigated here.

Moreover, SDT Air has failed to point to

any other factors that rebut the first-filed presumption.

SDT

Air has simply failed to demonstrate compelling circumstances to
overcome

the

presumption

that

the

first-filed

Georgia

action

should take precedence over the later-filed Louisiana action.
Accordingly, this Court declines to abstain from hearing this
action and denies SDT Air’s motion to dismiss, stay, or transfer
the action to the Eastern District of Louisiana. 7

7

The Court notes that SDT Air’s damages suit in the Eastern District
of Louisiana has been stayed pending the resolution of SDT Air’s
Motion to Dismiss in this Court. Pl.’s Resp. Ex. 13, E.D. La. Order
(May 24, 2013), ECF No. 19-17.

20

CONCLUSION
Having

found

that

the

Court

may

exercise

personal

jurisdiction over SDT Air, the Court denies SDT Air’s Motion to
Dismiss (ECF No. 18).

The Court also declines to dismiss, stay,

or transfer the action in favor of the Louisiana action.

IT IS SO ORDERED, this 17th day of October, 2013.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

21