Englert v. Beauty Fit, Inc

Filing 32

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant's motion to dismiss is GRANTED. ECF No. 25 . This case is DISMISSED without prejudice. A separate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on November 9, 2017. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

PATRICK ENGLERT, D/B/A PERFECT
HEALTH,
Plaintiff,
vs.
BEAUTY FIT, INC.,
Defendant.

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Case No. 4:17-cv-00993-AGF

MEMORANDUM AND ORDER
This matter is before the Court on Defendant BeautyFit, Inc.’s motion (ECF No. 25) to
dismiss for lack of personal jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(2),
and for failure to state a claim pursuant to Rule 12(b)(6). For the reasons set forth below, the
Court will grant the motion to dismiss, without prejudice, for lack of personal jurisdiction.
BACKGROUND
Plaintiff Patrick Englert, d/b/a Perfect Health, a citizen of Missouri, filed this diversity
action on March 20, 2017. The complaint names BeautyFit, Inc., a Florida corporation with its
principal place of business in Florida, as Defendant. Plaintiff asserts claims for fraud, breach of
contract, and violation of the Missouri Merchandising Practices Act (“MMPA”).
Plaintiff alleges that, in approximately October 2013, he began to purchase products
(vitamins and dietary supplements) from Defendant; that Defendant’s agents represented to
Plaintiff that he was authorized to distribute Defendant’s products through sales on various
online marketplaces, including Amazon.com; that Plaintiff sold Defendant’s products on
Amazon.com from October 2013 to December 2016; that in approximately December 2016,

Defendant’s compliance team emailed Plaintiff indicating that Plaintiff was not authorized to sell
Defendant’s trademarked products; that Plaintiff thereafter contacted Defendant’s president and
CEO, “Jimmy Mentis,” who assured Plaintiff that the issue would be resolved; that in January
2017, Defendant revoked Plaintiff’s authorization to sell the trademarked products on
Amazon.com; and that Plaintiff was thereby damaged because he retained an inventory of more
than $100,000 worth of trademarked products that Plaintiff has been unable to sell and that
Defendant has refused to repurchase.
For purposes of personal jurisdiction, Plaintiff alleges that Defendant does not maintain
an office in Missouri but has sufficient minimum contacts in Missouri through web-based sales
to purchasers and through the sale of its products to intermediaries, including Plaintiff. Plaintiff
further alleges that the actions described in the complaint constitute a tort committed within
Missouri and a contractual relationship with a Missouri citizen.
Defendant filed this motion to dismiss on September 20, 2017. In the motion, Defendant
incorporates by reference an affidavit of Dimitrios “Jimmy” Mentis, which was attached to a
prior motion to set aside an entry of default against Defendant.1 In his affidavit (ECF No. 22-1),
Mentis states that he is the president and CEO of Defendant, as well as the president and CEO of
a company called JDAWG Consulting, Inc. Mentis states that Defendant BeautyFit, Inc. does
not sell BeautyFit branded products, has never sold any such products to Plaintiff, has never
entered into a contract for the sale of any goods with Plaintiff, and has never met with or
solicited business from Plaintiff in Missouri. Rather, Mentis attests that JDAWG Consulting,
Inc. is the entity that sells BeautyFit branded products, and that JDAWG Consulting, Inc. has
sold certain BeautyFit branded products to Plaintiff since approximately 2013.

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The Court granted Defendant’s motion to set aside the entry of default on September 7,
2017. ECF No. 24.

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In support of its motion to dismiss, Defendant argues that, in light of its lack of contact
with Plaintiff or the state of Missouri, the Court’s exercise of personal jurisdiction over it would
violate the Due Process Clause. For the same reason, Defendant argues that it is not a proper
party to this lawsuit.
Alternatively, Defendant argues that Plaintiff’s claims should be dismissed for failure to
state a claim because Plaintiff has failed to plead with particularity a claim for fraudulent
misrepresentation or violation of the MMPA; Plaintiff’s fraud claim is also barred by the
economic loss doctrine; and Plaintiff has failed to plead the elements of breach of contract
because he has not attached, or described the terms of, any contract and has not identified which
provisions of the contract were breached.
In response to the motion to dismiss for lack of personal jurisdiction, Plaintiff argues that
Defendant is a proper party to this lawsuit and has sufficient minimum contacts with Missouri
because Defendant is the entity that sold BeautyFit branded products to Plaintiff and transacted
business with Plaintiff, as alleged in the complaint. In support of this argument, Plaintiff
attaches his own affidavit, in which he states that, based on his contacts with Mentis, and his
payments for and receipt of BeautyFit branded products, he understood a contractual relationship
to exist with Defendant. Plaintiff also attaches invoices that he received for the BeautyFit
branded products. These invoices are dated between October 2013 and October 2014, and
contain the names “BeautyFit®” and “www.beautyfit.com,” but do not reference either
BeautyFit, Inc. or JDAWG Consulting, Inc. ECF No. 29-1. Also attached to Plaintiff’s response
are emails and text messages between Plaintiff and Mentis, discussing the sale of BeautyFit
branded products. The emails are signed by “Jimmy Mentis, President/CEO,” with the email

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address “[e-mail]” and a reference to the website “beautyfit.com,” but, again, do
not reference either BeautyFit, Inc. or JDAWG Consulting, Inc. ECF No. 29-5.
On the merits, Plaintiff argues that he has sufficiently pleaded a claim for fraud and
breach of contract under Missouri common law, based on his allegations that Defendant agreed
that Plaintiff would be authorized to distribute BeautyFit branded products online; Defendant
represented in December 2016, that any issue related to Plaintiff’s distribution of such products
would be resolved; and that Defendant thereafter revoked Plaintiff’s authorization to distribute
such products. Plaintiff further argues that the economic loss doctrine does not apply to his fraud
claim. However, Plaintiff concedes that his claim for violation of the MMPA should be
dismissed because he has failed to allege that he purchased the goods at issue primarily for
personal, family, or household purposes.
Finally, Plaintiff argues that if the Court finds that it lacks personal jurisdiction over
Defendant, it should transfer the action, pursuant to 28 U.S.C. § 1631, to the United States
District Court for the Southern District of Florida, where Defendant is headquartered.
Alternatively, Plaintiff argues that if the Court determines that Plaintiff has failed to state a
claim, the Court should grant Plaintiff leave to amend. Plaintiff does not attach a proposed
amended complaint or explain the manner in which he would amend.
In reply, Defendant maintains that this case should be dismissed for lack of personal
jurisdiction, or alternatively, for failure to state a claim. Defendant contends that the evidence
attached to Plaintiff’s response does not demonstrate that Plaintiff transacted business with
Defendant, and does not contradict Defendant’s evidence that JDAWG Consulting, Inc. was in
fact the only entity that transacted business with Plaintiff. Rather, Defendant argues that
Plaintiff’s evidence, at most, demonstrates that Plaintiff purchased BeautyFit branded products

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and that he communicated with Mentis, who is the president and CEO of both Defendant and
JDAWG Consulting, Inc.
Moreover, Defendant attaches another sworn declaration from Mentis, in which Mentis
attests that he is the owner of “BeautyFit®” registered trademarks; that Defendant owns no
trademarks; and that JDAWG Consulting, Inc. sells “BeautyFit®” trademarked products, and
owns and operates the website www.beautyfit.com. Mentis also again attests that JDAWG
Consulting, Inc. is the only entity that has sold BeautyFit branded products to Plaintiff, and that
Plaintiff paid JDAWG Consulting, Inc. for these products.
Mentis attaches to his declaration invoices directed to Plaintiff dated in 2015 and
thereafter, which state that they are issued by “Jdawg Consulting DBA BeautyFit.” ECF No. 312. Mentis also attaches evidence of his ownership of the “BeautyFit®” trademark and receipts of
online payments from Patrick Englert to “JDAWG Consulting, Inc.” for BeautyFit branded
products, dated in 2015 and 2016.
DISCUSSION
“When personal jurisdiction is challenged by a defendant, the plaintiff bears the burden to
show that jurisdiction exists.” Fastpath, Inc. v. Arbela Techs. Corp., 760 F.3d 816, 820 (8th Cir.
2014). “To survive a motion to dismiss for lack of personal jurisdiction, a plaintiff must make a
prima facie showing that personal jurisdiction exists . . . .” K-V Pharm. Co. v. J. Uriach & CIA,
S.A., 648 F.3d 588, 591–92 (8th Cir. 2011) (citations omitted). “A plaintiff’s prima facie
showing must be tested, not by the pleadings alone, but by affidavits and exhibits supporting or
opposing the motion.” Fastpath, 760 F.3d at 820 (citations omitted). The court must view the
evidence “in a light most favorable to the plaintiff and resolve factual conflicts in the plaintiff’s

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favor; however, the party seeking to establish the court’s personal jurisdiction carries the burden
of proof and that burden does not shift to the party challenging jurisdiction.” Id.
“Personal jurisdiction in a diversity case exists only to the extent permitted by the longarm statute of the forum state and by the Due Process Clause.” 2 K-V Pharm., 648 F.3d at 592
(citations omitted). “[B]ecause the Missouri long-arm statute authorizes the exercise of
jurisdiction over non-residents to the extent permissible under the due process clause,” the Court
will consider “whether the assertion of personal jurisdiction would violate due process.” Aly v.
Hanzada for Imp. & Exp. Co., LTD, 864 F.3d 844, 849 (8th Cir. 2017) (citations omitted).
Due process requires that there be “sufficient minimum contacts between a defendant and
the forum state so that jurisdiction over a defendant with such contacts may not offend
‘traditional notions of fair play and substantial justice.” Id. (citations omitted). Specifically,
courts consider five factors: “(1) the nature and quality of the contacts with the forum state; (2)
the quantity of those contacts; (3) the relationship of those contacts with the cause of action; (4)
Missouri’s interest in providing a forum for its residents; and (5) the convenience or
inconvenience to the parties.” Id. Courts give “significant weight to the first three factors.”
Fastpath, Inc., 760 F.3d at 821.
Based on its review of the evidence submitted by the parties, the Court concludes that it
cannot exercise personal jurisdiction over Defendant. Plaintiff’s arguments in support of

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There are two types of personal jurisdiction: general and specific. Daimler AG v.
Bauman, 134 S.Ct. 746, 754 (2014). General jurisdiction exists over a corporate defendant when
the forum state is its place of incorporation or the location of its principal place of business, or in
an “exceptional case,” when the corporation’s activities in that state are “so substantial and of
such a nature as to render the corporation at home in that State.” Id. at 754, 761 n.19. Plaintiff
admits that Missouri is neither Defendant’s place of incorporation nor its principal place of
business, and Plaintiff does not assert that Defendant is “at home” here for purposes of general
jurisdiction. Specific, or “conduct-linked,” jurisdiction involves suits “aris[ing] out of or
relate[d] to the defendant’s contacts with the forum.” Id. at 751, 754. 

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personal jurisdiction are based entirely on Plaintiff’s theory that Defendant is the entity with
whom Plaintiff transacted business. But even viewed in the light most favorable to Plaintiff,
there is simply no evidence—as opposed to conclusory allegations—that this is true. Plaintiff
has not offered evidence to contradict Defendant’s evidence that JDAWG Consulting, Inc. is the
entity that transacted business with Plaintiff. Although Plaintiff has pointed to invoices and
emails that reference Mentis, the BeautyFit trademark, and/or the www.beautyfit.com website,
Plaintiff has not offered any evidence tying these references to Defendant, as opposed to
JDAWG Consulting, Inc.
“[C]ourts ordinarily protect the separate legal identities of individual corporations.”
Levine Hat Co. v. Innate Intelligence, LLC, No. 4:16-CV-1132 (CEJ), 2017 WL 3021526, at *4
(E.D. Mo. July 17, 2017). And while “there are situations in which one corporation shows such
domination and control over another that the latter corporation becomes an adjunct or alter ego
of the first,” id., Plaintiff has not alleged, argued, or submitted evidence that the companies here
are alter-egos. See, e.g., Boley v. Commercial Carriers, Inc., No. 4:94-CV-2298 CAS, 1996 WL
118280, at *6 (E.D. Mo. Feb. 23, 1996) (holding that, absent a further showing of an alter-ego
relationship, evidence that a parent and subsidiary corporation shared “several common directors
[and] officers” was insufficient to invoke personal jurisdiction over the nonresident parent based
on the subsidiary’s transactions in Missouri). Nor has Plaintiff requested jurisdictional discovery
to establish such a connection.
Because the Court finds that it lacks personal jurisdiction over Defendant, it need not
reach Defendant’s alternative grounds for dismissal. The Court will also deny Plaintiff’s
requests to transfer this action to the Southern District of Florida under 28 U.S.C. § 1631, or for
leave to amend in lieu of dismissing the case without prejudice. Section 1631 provides for

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transfer “in the interest of justice” to a court in which an action could have been brought, when
the court in which a civil action was filed lacks jurisdiction 28 U.S.C. § 1631; see also Fed. R.
Civ. P. 15(a)(2) (“The court should freely give leave to amend when justice so requires.”).
In determining the “interest of justice,” a key factor is whether “the statute of limitations
would have run before [the plaintiff] could refile properly.” Gunn v. U.S. Dep’t of Agric., 118
F.3d 1233, 1240 (8th Cir. 1997). There is no indication here that Plaintiff’s complaint would be
time-barred if he attempted to refile in an appropriate jurisdiction, naming the proper party and
stating claims for relief that are plausible on their face. See Mo. Rev. Stat. § 516.120 (five-year
statute of limitations for breach of contract and fraud claims).
CONCLUSION
For the reasons set forth above,
IT IS HEREBY ORDERED that Defendant’s motion to dismiss is GRANTED. ECF
No. 25. This case is DISMISSED without prejudice.
A separate Order of Dismissal shall accompany this Memorandum and Order.

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 9th day of November, 2017.

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