999 F.3d 1284
11th Cir.2021Background
- Don’t Look Media, LLC (DLM) licensed its PrivateJet.com booking platform to Fly Victor Ltd. under a 2015 Revenue Sharing Agreement (RSA); Fly Victor agreed to develop the site, run SEO/paid ads, and share revenues (40% initial, 10% subsequent) or pay minimum monthly amounts if targets missed.
- RSA contained mandatory choice-of-law and exclusive-jurisdiction clauses: English law and the courts of England for "any issues or disputes arising out of or in connection with" the RSA.
- DLM alleges Fly Victor and several individual officers (Jackson, Vorster, Northover, and others) never intended to perform, misrepresented site traffic, diverted revenues through related entities (Alyssum Group/Holdings), and thereby committed wire fraud and money laundering—claims pleaded under civil RICO and state tort/contracts law.
- DLM sued in the Southern District of Florida, served corporate defendants and attempted service on individuals at Fly Victor’s London office, and amended to invoke RICO’s nationwide-service provision, 18 U.S.C. §1965, for personal jurisdiction.
- Defendants moved to dismiss for lack of personal jurisdiction and pursuant to the RSA’s forum-selection clauses; the district court dismissed without prejudice. The Eleventh Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether RICO’s nationwide-service provision (18 U.S.C. §1965) supplies statutory personal jurisdiction where service occurred in England | DLM: §1965 permits nationwide service for RICO, so serving defendants abroad suffices to invoke jurisdiction in Florida | Defendants: §1965 authorizes service only in U.S. judicial districts; DLM did not serve any defendant in the U.S. | Held: §1965 requires service in a U.S. judicial district; DLM did not serve in the U.S., so RICO does not provide jurisdiction |
| Whether defense counsel’s email declining to contest service of process waived personal-jurisdiction objections | DLM: counsel’s statement not to contest service constituted waiver of jurisdictional defenses | Defendants: the email waived only the method-of-service objection; waiver of service does not waive personal-jurisdiction or venue defenses | Held: No waiver of personal jurisdiction; Rule 4 waiver of service does not waive jurisdictional objections |
| Whether the RSA’s forum-selection and choice-of-law clauses were unenforceable due to fraud, ambiguity, or lack of reciprocity | DLM: clauses were inserted as part of an overall fraudulent scheme and were unnegotiated, and Section 22.2 favors Victor (nonreciprocal) | Defendants: clauses are clear, mandatory, presumptively enforceable, and any asymmetry is irrelevant | Held: Clauses are mandatory, clear, and enforceable; DLM failed to make a strong showing of fraud or overreaching |
| Whether the forum clauses cover DLM’s RICO and tort claims and whether enforcing them would be unjust because England lacks a civil RICO remedy | DLM: claims arise from fraud and RICO; English courts don’t provide civil RICO relief, so enforcement would be unjust and deprive DLM of a remedy | Defendants: clauses govern "any issues or disputes arising out of or in connection with" the RSA, including contractual and non-contractual claims; foreign forum suffices | Held: Clauses unambiguously cover contractual and non-contractual claims (including RICO-related allegations); dismissal in favor of English forum is appropriate despite differences in substantive remedies |
Key Cases Cited
- Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino, 447 F.3d 1357 (11th Cir. 2006) (prima facie burden for personal jurisdiction and shifting burdens when defendants submit affidavits)
- SEC v. Marin, 982 F.3d 1341 (11th Cir. 2020) (statutory basis required before assessing due-process personal jurisdiction)
- Republic of Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935 (11th Cir. 1997) (interpreting RICO’s service provisions and treating §1965(d) as authorizing service in any U.S. judicial district)
- Atl. Marine Constr. Co. v. U.S. Dist. Ct. for W. Dist. of Texas, 571 U.S. 49 (2013) (forum-selection clauses are enforced via forum non conveniens and given controlling weight absent strong reasons)
- Lipcon v. Underwriters at Lloyd’s, London, 148 F.3d 1285 (11th Cir. 1998) (federal-law standards govern enforceability of forum-selection clauses)
- Rucker v. Oasis Legal Fin., L.L.C., 632 F.3d 1231 (11th Cir. 2011) (forum-selection clauses presumptively valid; plaintiff must make strong showing to avoid enforcement)
- M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972) (forum-selection clause enforceability principle and requirement of exceptional circumstances to avoid enforcement)