Case Information
*1 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
AMERICAN VINTAGE GUN AND PAWN,
INC. a/k/a American Vintage Guns, Inc.
Plaintiff,
Case No. 8:12 cv ‐ T ‐ ‐ MAP HOGAN MANUFACTURING, LLC,
ET AL.,
Defendants.
_____________________________/
ORDER
This cause comes before Defendants’ Motion Dismiss. (Doc. No. 6). Plaintiff filed a response opposition. (Doc. No. For reasons stated herein, motion denied.
I. BACKGROUND
Plaintiff, corporation, gun retailer alleges it had a longstanding relationship Patriot Ordinance Factory (“POF USA”), firearms manufacturer. early Plaintiff states it entered into written contract purchase guns Defendant Hogan Manufacturing, company owned managed Defendant Robert Hogan, sells firearms. Before entering into agreement, states Robert falsely asserted Manufacturing had legal right sell thirty two guns contracted purchase. Furthermore, Robert Chris (who time employee POF USA, but he now employed Manufacturing) misrepresented Manufacturing’s ability fulfill order. Despite paying full amount due order, received only fourteen *2 improperly constructed guns May and thus demanded a refund plus interest pursuant to agreed upon terms their contract. Plaintiff Robert Hogan agreed that Plaintiff would receive a refund amount $46,400.00. After returning guns, Plaintiff alleges that Hogan Manufacturing failed to abide refund agreement. Plaintiff alleges that collectively engineered scheme to steal money Plaintiff and to interfere with Plaintiff’s existing relationship with POF USA.
As a result, Plaintiff asserts six against Defendants. Count I is a breach contract claim against Hogan Manufacturing, alleging company failed to deliver guns Plaintiff ordered and failed to abide terms refund agreement. Count II a theft claim against Hogan Manufacturing and Robert Hogan, alleging they intended to convert $46,400 Plaintiff’s money for their own use. Count III a claim for intentional fraud against Hogan Manufacturing and Robert Hogan and they made false statements to induce Plaintiff abandon its existing business relationship with POF USA and induce enter into a contract with Manufacturing order convert funds. Count IV asserts a negligent fraud claim against Manufacturing Robert they made false statements material fact they had ability legal right sell guns issue, when should known they have such right. Count V, asserts claim for tortious interference with relationship against all Defendants, alleging unjustifiable interference with existing relationship POF USA. Count VI claim Chris Robert allegedly engaging joint plan induce sever relationship POF ‐ USA defraud into paying guns Manufacturing could provide.
Defendants move partial dismissal of Plaintiff’s complaint. Specifically, Defendants argue: (1) this Court lacks personal jurisdiction over defendants Hogan; (2) defendant improperly served; (3) Counts II, III, IV, VI Complaint must be dismissed under economic loss rule, (4) Counts II VI complaint do not sufficiently plead claims.
II. DISCUSSION
A. PERSONAL JURISDICTION
1. Legal Standard Determining whether this Court can exercise personal jurisdiction requires two step inquiry. Estate Scutieri Chambers, App’x (11th Cir. 2010). The must determine whether Florida’s long arm statute allows jurisdiction over defendants whether “exercising jurisdiction comports constitutional requirements due process.” Id. “Under law, plaintiff bears burden proving personal jurisdiction” if defendant raises legitimate challenge personal jurisdiction. Sculptchair, Inc. Century Arts, Ltd., F.3d (11th Cir. 1996)(citation omitted). Motions dismiss lack personal jurisdiction “should be denied if plaintiff sufficient facts support reasonable inference can subjected jurisdiction court.” Jackam Hosp. Corp. Am. Mideast, Ltd., F.2d (11th Cir. Florida’s Long Arm Statute argue may exercise personal jurisdiction over
DeSomma, because conduct fall within ambit Florida’s long arm statute. statute allows jurisdiction over any person “committing tortious act” *4 within state. Fla. Stat. § 48.193(1)(b). To commit tortious act in Florida, “a defendant’s physical presence required” act can done through “telephonic, electronic, written communications into Florida,” with caveat that “the cause action must arise communications.” Wendt Horowitz, 2d 2002). Furthermore, “an out ‐ ‐ state tort resulting in injury in Florida subjects actor to jurisdiction under Florida's long arm statute.” Estate Scutieri, F. App'x at
DeSomma consist allegations committed tortious acts within Florida. Specifically, Plaintiff alleges committed negligent fraud via email communications Plaintiff in Florida, which caused injury Plaintiff in Florida. (Doc. No. at 2). Furthermore, Plaintiff alleges engaged in civil theft, which resulted in injury in Florida. (Doc. No.1, ¶ 16). Additionally, both engaged in conspiracy interfere, in fact interfere, relationship with POF USA, which caused injury in Florida. (Doc. No. at 8). Thus, has sufficiently alleged Hogan’s conduct falls within ambit Florida’s long arm statute. *5 jurisdiction. Id. In this that DeSomma Hogan conspired terminate business relationship POF USA defraud into placing an order with Hogan Manufacturing, company could fulfill order. Furthermore, sent emails in Florida in furtherance conspiracy. As such, these allegations are sufficient show personal jurisdiction over DeSomma exists for claim. DeSomma argue cannot exercise personal jurisdiction over them for conduct occurred while they were acting within scope their employment. Florida recognizes “fiduciary shield” or “corporate shield” doctrine, which provides actions undertaken employee in course his or her work corporation cannot form basis exercising jurisdiction over employee. Doe Thompson, 1993)(citation omitted). However, corporate employee commits intentional misconduct can be subject personal jurisdiction. See id. n.1. determining whether fiduciary shield doctrine shields personal jurisdiction, must determine whether were acting in course their employment whether are committed misconduct. This distinction necessary, because “[i]f law were otherwise, any corporate employee could forced defend suit courts, regardless what individual respect employer's business, so long his employer engaged state.” Bloom A. H. Pond Co., Inc. , (S.D. *6 instant that defendants and DeSomma personally committed intentional misconduct ‐‐‐ theft, fraud, tortious interference with relationship, and conspiracy. As such, Plaintiff’s allegations are sufficient show personal jurisdiction over DeSomma appropriate despite fiduciary shield doctrine. Due process
The Due Process Clause Fourteenth Amendment “requires defendant minimum contacts forum state exercise jurisdiction over defendant offend ‘traditional notions fair play substantial justice.’” Mut. Serv. Ins. Co. Frit Indus., Inc., F.3d 1312, 1319 (11th Cir. 2004) (quoting Int'l Shoe Co. v. Washington , U.S. (1945)).
a. Minimum Contacts “minimum contacts” requirement “is satisfied if ‘purposefully directed’ activities residents forum state, litigation results from alleged injuries ‘arise out relate to’ those activities.” Licciardello Lovelady, F.3d (11th Cir. 2008) (internal citations omitted). Even single act can meet threshold so long it creates “substantial connection” forum state. Burger King Corp. Rudzewicz, U.S. n.18 (1985). There no dispute here arise conduct purposefully directed toward Florida. Additionally, made false representations Florida.
An alternative justification finding sufficient “minimum contacts” lies torts committed Defendants. “When intentional tort alleged, *7 personal jurisdiction may be supported over non resident defendant who has no other contacts forum.” Exhibit Icons, LLC v. XP Companies, LLC, 609 1282, 1298 (S.D. 2009)(citing Calder Jones, U.S. 790 (1984)). has alleged committed intentional torts in Florida, such, has these defendants sufficient minimum contacts Florida so could reasonably expect be sued there.
b. Traditional Notions Fair Play Substantial Justice exercise jurisdiction over defendant must “not offend traditional notions fair play substantial justice.” Int’l Shoe, U.S. at 316. When ”a defendant who purposefully has directed activities at forum residents seeks defeat jurisdiction, he must present compelling case presence some other considerations would render jurisdiction unreasonable.” Burger King Corp., U.S. In circuit, relevant factors this analysis “include burden in defending lawsuit, forum state's interest in adjudicating dispute, plaintiff's interest in obtaining convenient effective relief, interstate judicial system's interest in obtaining most efficient resolution controversies, shared interest states in furthering fundamental substantive social policies.” Cronin Washington National Ins. Co., F.2d (11 th Cir. 1993)(citations omitted). their motion, do raise any argument litigating case
Fla. Sept. 2011). Lastly, there is no evidence suggest any other state greater interest in hearing this case than Florida. Accordingly, the Court finds exercising jurisdiction over these comports with traditional notions of fair play and substantial justice. Therefore, the concludes it may exercise personal jurisdiction over and DeSomma.
B. IMPROPER SERVICE argues he served properly, therefore, all him should be dismissed. Service on individual can be made by any method authorized the state where district court is located (Florida), the state where service is made (Arizona), or by method specifically listed Federal Rules of Civil Procedure. Fed. R. Civ. P. law allows service made by delivering copy summons complaint person or leaving copies at or her usual place abode with any person residing therein who is least years old informing person their contents. Stat. § 48.031(1)(a). Arizona law regarding service Federal Rules’ listed means service parallel one another. Ariz. R. Civ. P. 4.1(d); Fed. R. Civ. P. 4(e)(2). relevant part, both allow service leaving summons individual’s dwelling so long as it someone suitable age discretion who resides there. Id. Therefore, question before whether complied service requirements Florida, Arizona, Federal Rules. proof service case indicates process server served complaint twenty five year old white female co resident DeSomma. (Doc. No. However,
female would give her name, such, impossible tell proof service *9 who was actually served. (Doc. No. 11). DeSomma argues that he was not properly served via substitute service, he submitted an affidavit which he states that the female that was purportedly served was his child’s babysitter.
When defendant raises question as the sufficiency of service, “it the burden prove sufficient service.” United States Austin, ‐ CIV, WL 4345308, at *3 (S.D. Sept. 16, However, when return of service document regular on its face, the burden shifts the supply clear convincing evidence of invalid service. Robles Martinez Diaz, Reus & Targ, LLP, 3D10 WL 3586179, *2 (Fla. 3d DCA Aug. 2011) (citation omitted ). this the return of service form not entitled deference, as it fails indicate name of person upon which substitute service was made. See Gonzalez Totalbank, 3d DCA 1985)(concluding return service was defective because not reflect name person served). Therefore, burden establishing proper service falls on Plaintiff. return service form states substitute service was made twenty five year
old co resident, if true, would satisfy federal requirements, as well as those Arizona. However, has submitted affidavit which he challenges sufficiency service stating process server attempted serve babysitter was house. Furthermore, return service form does not provide name individual served, such, sufficient information conclude service was proper. Accordingly, concludes met burden showing properly served.
The Federal Rules require plaintiffs furnish defendants a copy the summons complaint within days after complaint filed. Fed. R. Civ. P. 4. While the 120 day period has expired, same rule gives Court discretion allow additional time to properly serve DeSomma. Court concludes interests justice warrant granting additional thirty days properly serve DeSomma. If fails properly serve DeSomma, Court will dismiss claims him.
C. ECONOMIC LOSS RULE contend claims for theft, intentional fraud, negligent fraud, are barred economic loss rule. This rule “bars independent tort claims stemming a contractual breach only result in economic loss . . . [but] apply causes action based upon negligent intentional torts considered independent contractual breach even though breach contract action exists.” Bradley Factor, Inc. United States, F. Supp. 2d (M.D. Fla. 2000). The rationale behind rule “[a] party contract who attempts circumvent contractual agreement making claim economic loss tort is, effect, seeking obtain better bargain than originally made.” Indem. Ins. Co. N. Am. Am. Aviation, Inc., 2d 2004). Fraud claims Upon review complaint, construes two fraud claims fraudulent misrepresentation/fraudulent inducement negligent misrepresentation, rather than negligent fraud. Supreme repeatedly found “that fraud inducement recognized exception economic loss rule.” New Lenox Indus., Inc. Fenton, (M.D. Even if “the *11 fraud concerns the subject matter of the contract,” so long as the alleged fraud is “pre ‐ contractual,” the economic loss rule does not bar recovery. Bradley Factor, 2d at 1145. the alleged fraud occurred before the formation the contract. and Manufacturing fraudulently or negligently misrepresented Manufacturing had the legal right sell the guns issue these misrepresentations caused place an order. While misrepresentations related performance contractual obligations will often not yield independent tort claims, fraud negotiation contract (i.e., they represented Manufacturing had right sell guns when knew should have known Manufacturing not such a right when representation was made, which was prior formation contract). Accordingly, economic loss rule does not bar recovery for fraudulent misrepresentation negligent misrepresentation claims. Allen Stephan Co., So. 2d (Fla. th DCA 2000)(stating economic loss rule bar tort fraudulent inducement negligent misrepresentation). Civil theft When civil theft “not merely a failure perform, but an affirmative act converting funds own use allegedly stealing monies which he entrusted, there merely breach contract but separate independent tort.” Burke Napieracz, st DCA When same property issue theft claim breach contract claim, “civil theft claim requires additional proof ‘an intricate sophisticated scheme deceit theft.’” Gersh *12 Cofman, So. 2d 409 (Fla. 4 th DCA 2000) (citing Trend Setter Villas Deer Creek Villas Green , So.2d 4th DCA 1990)). In case, Plaintiff alleges Hogan Manufacturing Robert Hogan more than simply fail to fulfill their contractual obligations. Plaintiff states Robert Hogan Manufacturing spun a web deceit to induce Plaintiff to enter into a business transaction when knew they outset Manufacturing had neither legal right nor commercial ability enter into it. Additionally, Manufacturing retained money after agreeing return allegedly converted it own use. See Burke, 2d (stating failure perform accompanied theft are two independent claims). In other words, accuses Manufacturing Robert purposeful theft facilitated a contract; thus, economic loss rule does not preclude recovery. Conspiracy economic loss rule does not bar are independent a breach contract
claim, including conspiracy. Hilliard Black, (N.D. instant conspiracy induce enter into a contract order further theft interfere an existing relationship, not merely conspiracy perform under contract. While some underlying facts are necessarily shared breach contract claim, additional facts are support finding independent tort. Accordingly, economic loss rule bar claim.
D. INSUFFICIENT PLEADINGS next argue has failed adequately plead all of except Count I (breach contract). A motion dismiss failure adequately plead “merely tests sufficiency complaint; it not decide merits case.” Vasconez v. Hansell, 6:12 CV ‐ 236 ‐ ORL ‐ 31, 2012 WL 1631686, *1 (M.D. Fla. May 8, 2012) (citation omitted). The Federal Rules Civil Procedure require “a short plain statement claim showing pleader entitled relief.” Fed. R. Civ. P. 8(a)(2). The complaint “must plausibly establish each element cause action.” v. Provident Life & Acc. Ins. Co., 1273, (M.D. Fla. 2009)(citation omitted). “[C]onclusory allegations, unwarranted factual deductions legal conclusions masquerading facts will prevent dismissal.” Davila Delta Air Lines, Inc., F.3d 1183, (11th Cir. 2003)(citation omitted). Satisfying this standard “does require ‘detailed factual allegations,’ but demands more than an unadorned, defendant unlawfully harmed me accusation.” Ashcroft Iqbal, U.S. (2009) (citations omitted). Civil theft complaint presents claim civil theft Robert
Manufacturing. A claim theft requires plaintiff prove conversion taken place acted criminal intent. See Walgreens Co. Premier Products America, Inc., WL *5 (M.D. Oct. 2011)(citations omitted). Manufacturing Robert concocted elaborate fraudulent scheme purposefully appropriate money *14 their own use. Upon review of the allegations in the complaint, the concludes sufficiently alleged theft claim. Fraud claims complaint alleges fraud and negligent fraud claims Robert and Manufacturing, which the construes as claims of fraudulent misrepresentation and negligent misrepresentation. As per the Federal Rules Civil Procedure, any pleading fraud subject heightened pleading standard, which requires claims made “with particularity.” Fed. R. Civ. P. 9(b); Johnson Amerus Life Ins. Co., CIV, WL *4 (S.D. Dec. 27, 2006) (stating the heightened pleading standard applies negligent misrepresentation, because such sound in fraud). Accordingly:
[This standard] satisfied if complaint sets forth (1) precisely what statements were made in what documents oral representations or what omissions were made, and (2) time and place each such statement and person responsible making (or, in case omissions, making) same, (3) content such statements and manner which misled plaintiff, (4) what defendants obtained consequence fraud. Ziemba Cascade Int'l, Inc., F.3d (11th Cir. 2001) (internal quotation marks citation omitted). “[I]n case involving multiple defendants . . . complaint should inform each nature participation fraud.” Brooks Blue Cross & Blue Shield Florida, Inc., F.3d (11th Cir. 1997) (internal quotation marks citations omitted). order induce place order
Manufacturing, Robert falsely stated Manufacturing had legal right commercial ability supply guns, he so intent cause *15 abandon its existing contract with POF USA and convert Plaintiff’s funds. Upon review the allegations complaint, the Court concludes that the fraudulent and negligent misrepresentation comport with heightened pleading standard, and these will be dismissed.
3. Tortious interference with a business relationship To succeed on a claim tortious interference with a business relationship under law, Plaintiff must demonstrate “(1) existence business relationship . . . ; (2) knowledge relationship part defendant; (3) an and unjustified interference with relationship defendant; and (4) damage plaintiff as result breach relationship.” Tamiami Trail Tours, Inc. Cotton, Plaintiff had relationship with POF USA and that were aware it. Furthermore, Plaintiff asserts DeSomma’s scheme defraud was partially motivated desire interfere with Plaintiff’s relationship POF USA. Finally, interfered with relationship POF USA damaged thereby, was nation’s top seller POF USA’s products prior DeSomma’s interference. Accordingly, concludes tortious interference claim sufficiently pled. Conspiracy correctly assert conspiracy claim predicated upon existence underlying tort had dismissed multiple tort claims, claim would also dismissed. Chepstow Ltd. Hunt , F.3d *16 (11th Cir. dismissed any tort claims, presented no other reason why claim should be dismissed.
III. CONCLUSION
Accordingly, ORDERED AND ADJUDGED that:
(1) Defendants’ Motion Dismiss (Doc. No. 6) DENIED.
(2) must properly serve Defendant file proof service July 2012. If proper service made within timeframe, all will dismissed. DONE AND ORDERED , Tampa, ___ day June, Copies to: Counsel Record Furthermore, regard civil conspiracy claim, notes “Florida law construes state's long arm statute reach all alleged participants in civil conspiracy, [if] least one act furtherance which committed in . . . even if civil conspirator otherwise no connection state.” AXA Equitable Life Ins. Co. Infinity Fin. Group, LLC, (S.D. So long “the complaint as whole sufficiently defendants formed [and] least some acts furtherance which were carried out Florida,” Florida’s long arm statute authorizes
would burdensome. Furthermore, notes “Florida strong interest affording residents forum obtain relief misconduct nonresidents causing injury Florida.” Pelc Nowak, 8:11 CV T 17TGW, WL *5 (M.D.