Redrock Trading Partners LLC et al v. Baus Management Corporation et al

Filing 35

ORDER granting 24 Motion to Dismiss; denying as moot 25 Motion to Dismiss. Plaintiffs are Ordered to show cause within ten (10) days from the date of this Order as to why the Court should not dismiss the remaining defendants without prejudice for want of personal jurisdiction. Defendant Franz Baus is dismissed without prejudice. Signed by Judge J. Randal Hall on 10/10/2014. (thb)

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

REDROCK TRADING PARTNERS,

LLC

*

and COMAAR CAPITAL INTERNATIONAL *

CORPORATION,

*
*

Plaintiffs,

*
*

v.

*

CV 113-043

*

BAUS MANAGEMENT CORPORATION;

*

B.A.U.S.

*

SP.

Z O.O.;

B.A.U.S.

ADVANCED TECHNOLOGIES SP.

MONIKA ANNA BAUS;

Z O.O.;*

and FRANZ

*

JOSEF BAUS,

*
*

Defendants.

*

ORDER

Presently pending before the Court is Defendant B.A.U.S.
Advanced Technologies'

("B.A.U.S.

AT")

motions to dismiss for

lack of personal jurisdiction (Doc. 24) and insufficient process
and service of process (Doc. 25).
B.A.U.S.

AT's

jurisdiction

motion

is

to

GRANTED

For the reasons stated below,

dismiss

and

its

for

motion

lack

to

of

personal

dismiss

for

insufficient process and service of process is DENIED AS MOOT.

Additionally, and pursuant to this Court's order dated August 4,
2014

(Doc.

34), Defendant Franz Josef Baus

is hereby DISMISSED

WITHOUT PREJUDICE. Finally, Plaintiffs shall have TEN (10) DAYS
from the date of this Order to SHOW CAUSE as to why the Court

should

not

dismiss

without

prejudice

the

remaining

defendants

for lack of personal jurisdiction.

I.

On March 8,

Capital

2013,

International

BACKGROUND

Redrock Trading Partners

filed

their

complaint against Defendants Baus Management Corporation

("Baus

Management"),
Monika

Anna

breach of

is

the

B.A.U.S.
Baus,

Corporation

LLC and Comaar

sp.

and

z

Franz

o.

of

Baus

o

("B.A.U.S."),

Josef

contract and fraud.

President

("Plaintiffs")

Baus

(Doc.

1,

Management

shareholder of B.A.U.S. AT.

(Compl.

alleging

"Compl.")

and

an

K 6.)

dispute

arises

out

of

three

contract was entered into on May 8,

Baus Management,

for

eighty

percent

is a

(Id. 1 7.)
The

first

by Comaar Capital and

represented by Monika Baus.

In this contract,

claims

Monika Baus

contracts.

2008,

AT,

Franz Baus

member of the management board of B.A.U.S. AT.
The

B.A.U.S.

(Compl.,

Ex.

A.)

Baus Management retained Comaar's services to

obtain capital investment up to $6,000,000.00, and Comaar was to
receive ten percent of the amount Baus Management received from
investors

as

its

fee.

(Id.)

The

contract

contained

following forum selection clause:

The Company irrevocably consents to the jurisdiction
of the courts of the Quebec and Canada and of any
federal court located in such State in connection with

any action or proceeding arising out of,
to,

this

Agreement,

any

document

or

or relating
instrument

the

delivered
pursuant
to,
in
connection
with,
simultaneously with this Agreement, or a breach
this Agreement or any such document or instrument.

or
of

(Id.)

In

the

second

contract

dated

September

3,

2008,

Baus

Management retained Redrock Trading Partners' services to obtain

capital investment up to $6,000,000.00, with a fee for Redrock

equal to six percent of the amounts received.
The

final

contract

was

entered into by

(Id. , Ex. B.)

Plaintiffs

Baus on behalf of Baus Management on September 3,
Ex.

C.)

This

third contract

was

and Monika

2008.

a "Non-Circumvent

(Id. ,

Agreement"

whereby the parties agreed that all corporations, including all
divisions,

subsidiaries,

employees,

agents,

or

consults

would

not enter into any transaction with any other party so as to

prevent any party from receiving fees,
etc.

profits,

commissions,

(Id.)

Defendant Monika Baus filed her answer on December 4,

2013

(Doc. 6), and a motion to dismiss under Rule 4(m) of the Federal
Rules of

Civil Procedure on December 11,

2013

(Doc.

8) .

In

Ms. Baus' answer, she asserts that neither personal jurisdiction

nor venue is proper before this Court.

(Id.)

B.A.U.S. AT filed

an identical motion to dismiss on December 11,

motions
Defendant

(Doc. 9.)

were

denied

B.A.U.S.

AT

on

August

filed

its

4,

2014.

answer

2013,

(Docs.

on December

and both

8,

34.)

23,

2013.

Thereafter, Defendant B.A.U.S. AT moved for, and was

granted,

leave

motions.

to

file

(Docs.

18,

amended and supplemental
21.)

Defendant

MOTION TO DISMISS

and

AT

B.A.U.S.

current motions to dismiss on June 2, 2014.

II.

pleadings

its

filed

(Docs. 24,

25.)

STANDARD

"In the context of a motion to dismiss for lack of personal

jurisdiction

in

which

no

evidentiary

hearing

is

held,

the

plaintiff bears the burden of establishing a prima facie case of
jurisdiction over the movant, nonresident defendant."
SSE,

Inc.,

843

F.2d 489,

492

(11th Cir.

1988) .

Morris v.

The plaintiff

establishes a prima facie case by presenting "enough evidence to
withstand

F.2d

a

motion

1510,

evidence
forth
that

1514

to

for

(11th

reasonable

Walker v.

1995).

Cir.

verdict."

1990).

A

Madera

party

v.

Hall,

presents

withstand a motion or directed verdict

"substantial

impartial

directed

evidence ... of

and

judgment
Nations

The

fair-minded

might

Bank of

facts

reach

persons

in

in

the

the

enough

by putting

quality

different

Fla. , 53

presented

such

916

and

weight

exercise

of

conclusions . . ."

F.3d 1548,

1554

plaintiff's

(11th Cir.

complaint

are

taken as true to the extent they are uncontroverted.

Foxworthy

v.

(N.D. Ga.

Custom Trees,

1995) .

If,

Inc.,

879 F. Supp.

however,

the

1200,

defendant

1207

n.10

submits

affidavits

challenging the allegations in the complaint, the burden shifts
back

to

the

plaintiff

to

produce

evidence

supporting

jurisdiction.
Int'l,

Inc.,

Diamond
593

Crystal

F.3d

1249,

Brands,

1257

Inc.
Cir.

(11th

v.

Food

Movers

2010).

If

the

plaintiff's complaint and supporting evidence conflict with the
defendant's

affidavits,

the

court

must

inferences in favor of the plaintiff.
Int'l Hotels, Ltd.,

construe

Id.

all

reasonable

(citing Meier v. Sun

288 F.3d 1264, 1269 (11th Cir. 2002)).

To determine whether a nonresident defendant is subject to

personal

jurisdiction,

analysis.
whether
the

Id. at

the

determine

the

forum

of

long-arm

whether

state

Court

1257-58.

exercise

state's

the

to

Fourteenth Amendment.

personal

are

a

two-part

the Court must

First,

statute.

there

must

determine

jurisdiction is proper under
Id.

Next,

sufficient

satisfy

perform

the

Id. ; Int'l

the

Court

"minimum

contacts"

Due

Process

Clause

Shoe

Co.

v.

Wash.

of

must
with

the

Office of

Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945).
The

Eleventh

Circuit

has

held

that

"the

Georgia

long-arm

statute does not grant courts in Georgia personal jurisdiction
that

is

coextensive

with procedural

due

process,"

but

instead

"imposes independent obligations that a plaintiff must establish
for the exercise of personal jurisdiction that are distinct from
the demands of procedural due process."

Inc.,

593

F.3d

at

1259.

"[C]ourts

Diamond Crystal Brands,

must

apply

the

specific

limitations and requirements of O.C.G.A. § 9-10-91 literally and

must engage in a statutory examination that is independent of,

and

distinct

both,

from,

separate

satisfied."

Id.

the

constitutional

prongs
at

of

the

to

ensure

inquiry

jurisdictional

that

are

1263.

III.

Defendant

analysis

B.A.U.S.

AT

DISCUSSION

contends

that

this

Court

lacks

personal jurisdiction over it, and the complaint should thus be
dismissed.

Upon review of the record,

the Court also addresses

Defendant Monika Baus'1 assertion that the Court lacks personal

jurisdiction

over

her.

Finally,

the

Court

addresses

the

dismissal of Defendant Franz Baus.2
A.

Defendant B.A.U.S.

Defendant

B.A.U.S.

AT

AT

moves

this

Court

to

dismiss

the

complaint against it pursuant to Rule 12 of the Federal Rules of
Civil

Procedure,

jurisdiction

over

insufficient.

1

asserting

it

and

that

this

that

service

Because this Court finds

Defendant Monika Baus'

Court

that

and

lacks

personal

process

were

i t lacks personal

answer states that " [p]ersonal jurisdiction and

venue are not proper before this Court based upon consent of the parties in
choice of law and forum selection clauses as Monika Anna Baus did not agree,

accept or sign such a clause. Monika Anna Baus did not consented (sic) to the
United States
(Doc. 6 1 8.)

District Court Southern District of Georgia jurisdiction."
Thus, and in light of the liberal standards afforded to a pro

se litigant's pleadings,
Baus' contention.

2

the Court additionally addresses Defendant Monika

Erickson v. Pardus, 551 U.S. 89, 94 (2007) .

On August 4, 2014, this Court directed Plaintiffs to show cause as to

why Defendant Franz Baus should not be dismissed without prejudice.
34.)

As that time has passed and Plaintiffs have failed to respond,

Court addresses that Defendant as well.

(Doc.
the

jurisdiction,

it

need

not

address

Defendant

B.A.U.S.

AT's

service argument.

It is undisputed that B.A.U.S. AT was not a party to any of
the

contracts

Court

has

at

issue.

personal

agreements,

Instead,

Plaintiffs

jurisdiction over

specifically

the

first

contend that

B.A.U.S.

contract

AT

because

(Compl.,

Ex.

this

the

A)

containing the forum selection clause,

"were made and signed by

Monika

Defendant

Baus,

an

"Monika Baus[']

or

80%

shareholder

of

ownership ... is

agreements

Monika Baus'

AT"

and

use of the corporate entities under her control

at

the heart

of

defies logic to state Defendant B.A.U.S.

the

BAUS

when

Defendant

alter ego."

(Doc.

the

entire

case.

It

[AT] did not consent to

B.A.U.S.
27 SI 4.)

[AT]

is

In fact,

essentially
Plaintiffs

assert that they do not seek to establish personal jurisdiction
over B.A.U.S. AT through the Georgia long-arm statute,

but that

the Court has personal jurisdiction over B.A.U.S. AT because "it

consented to [jurisdiction] in the [contract] signed May 8, 2008

by Monika Baus

as President of Baus Management Corporation."

(Id. H 2.)
"Forum

selection

clauses

are

presumptively

enforceable unless the [defendant] makes a
enforcement

would

circumstances."

be

unfair

or

valid

and

^strong showing'

that

unreasonable

under

Krenkel v. Kerzner Int'l Hotels Ltd.,

1279, 1281 (11th Cir. 2009)

the

579 F.3d

(citing Carnival Cruise Lines, Inc.

v.

Shute,

favored

499

due

U.S.

to

585,

593-95

their

(1991)).

ability

to

These

provide

Ice

Cream Co. , No.

(S.D.N.Y.
Thus,

Sept.

forum

26,

13-CV-1083-JSR,

2013)

selection

(internal
clauses

2013

Conopco,
WL

only

be

and

Inc. v.

5549614,

quotation marks

will

are

"certainty

predictability in the resolution of disputes."
PARS

clauses

at

*5

omitted).
considered

unenforceable when:

(1)

their

formation

was

induced

by

fraud

or

overreaching;
deprived
of

(2) the plaintiff effectively would be
its
day
in
court
because
of
the

inconvenience

or

the

fundamental

unfairness

the

of

unfairness

of

chosen

the

chosen

forum;
law

(3)

would

deprive the plaintiff of a remedy; or (4) enforcement
of the provisions would contravene a strong public
policy.

Lipcon v. Underwriters at Lloyd's,
(11th Cir.

apply

to

1998) .

an

predictability
refuse

to

However,

enforce

S.E.2d

2

forum

certainty],
them."

(Ga.

Ct.

"undermine

and

Conopco,

(citing Cent. Ohio Graphics,
472

148

F.3d 1285,

1292

forum selection clauses that do not

ascertainable
and

London,

App.

Inc.

v.

1996)

for

[the]

that

goals

reason,

2013

WL

Alco

Capital Res.,

and

A.I.

5549614,

Credit

[of

courts
at

*5

Inc.,

Corp.

v.

forum selection clause potentially provides

for

Liebman, 791 F. Supp. 427, 429 (S.D.N.Y. 1992)).
Here,

the

jurisdiction in any court north of Mexico.

for

jurisdiction

Quebec and Canada,

in

the

courts,

both

local

The clause allows

and

federal,

of

as well as any federal court in "such State

8

in

connection

with

of . . . this

any

action

agreement."3

or

(Compl.,

proceeding

Ex.

A.)

arising

It

out

is entirely

unclear from the record just how many of the fifty states could
qualify.
issue

The

is

Court

impermissibly

policy in its
jurisdiction
B.A.U.S.

finds

favor,
over

AT's

that

vague,

and thus

Defendant

motion

the

forum

contravening

the

clause

strong

at

public

insufficient to support personal

B.A.U.S.

to

selection

AT.

dismiss

As

for

such,

lack

of

Defendant
personal

jurisdiction is GRANTED.
B.

Defendants Monika Baus and Baus Management Corporation

Defendant Monika Baus,
answer

(Doc.

6)

that

a

neither

pro se litigant,
personal

were proper in the instant matter.
bear

the

prima

burden

facie

case

S.A. v. Mosseri,

Here,

above,

of

alleging

of

Plaintiffs

the

Court

As stated above,

jurisdiction."

have

finds

jurisdiction

"sufficient

736 F.3d 1339, 1350

failed

that

the

asserted in her

facts

Louis

meet

forum

venue

Plaintiffs
make

Vuitton

(11th Cir.

to

to

nor

out

a

Malletier,

2013).

this

burden.

selection

clause

As

is

3
Defendant B.A.U.S. AT argues that this language does not apply to the
fifty United States, but rather the federal courts of Canada.
This argument
is of no avail.

To

read the clause as B.A.U.S.

AT asserts would render the

"any federal court located in such State" language meaningless, as surely the
federal

courts of Canada are also included in "the courts

of the Quebec and

Canada."
(Compl., Ex. A.)
See Equity Lifestyle Props., Inc. v. Fla. Mowing
& Landscape Serv. , Inc., 556 F.3d 1232, 1242 (11th Cir. 2009) ("We must read

the contract to give meaning to each and every word it contains, and we avoid
treating a word as redundant or mere surplusage if any meaning, reasonable
and consistent with other parts, can be given to it." (internal quotation
marks omitted)).

impermissibly vague
must

look

to

the

and,

thus,

face

of

whether jurisdiction is

unenforceable.

Plaintiffs'

proper before

complaint

simply

asserts

consented

to

jurisdiction

the

court . . . ."

(Compl.

that

SI 10.)

this

Court

to

then

determine

Plaintiffs'

Management

the

Court.

"irrevocably

courts

of

any

federal

It is undisputed that Defendant

Monika Baus is a Polish citizen.
two statements — that Ms.

complaint

Baus
of

The

(Id. H 6.)

Aside from those

Baus consented to jurisdiction and is

a Polish citizen — the complaint provides no indication of facts

or

circumstances

Georgia's
the

Due

that

would

long arm statute,
Process

give

or

Clause.

rise

that

to

jurisdiction

would be

Accordingly,

under

sufficient under

Plaintiffs

are

hereby

DIRECTED to submit to this Court sufficient facts demonstrating

personal jurisdiction as to all remaining defendants within TEN
(10)

DAYS.

The

failure

to do

so

could result

in dismissal

of

the complaint without prejudice.
C.

Defendant

As a

Franz

Baus

final matter,

in an Order dated August 4,

2014

(Doc.

34) , the Court directed Plaintiffs to

show cause within thirty

days as to why Defendant

should not

Franz Baus

be dismissed

without prejudice for failure to effect service upon him.

As

nearly sixty days have passed with no response from Plaintiffs,
the

Court

hereby

DISMISSES

WITHOUT

Baus.

10

PREJUDICE

Defendant

Franz

III.

For

the

reasons

set

CONCLUSION

forth

above,

Defendant

B.A.U.S.

AT's

motion to dismiss for lack of personal jurisdiction (Doc. 24) is
GRANTED

and

its

process

(Doc.

motion

25)

to

dismiss

for

is DENIED AS MOOT.

are ORDERED to SHOW CAUSE within TEN

insufficient

service

Additionally,
(10)

DAYS

and

Plaintiffs

from the date of

this Order as to why the Court should not dismiss the remaining
defendants without prejudice for want of personal jurisdiction.

Finally,

Plaintiffs'

complaint against Defendant Franz Baus is

DISMISSED WITHOUT PREJUDICE.

ORDER ENTERED at Augusta,
October,

Georgia,

this

/Q

day of

2014.

)AL HALL

UNITED STATES DISTRICT JUDGE
IERN DISTRICT OF GEORGIA

11