OPINION AND ORDER
This cause is before the Court upon Defendant XP Companies, LLC, XP Entertainment, LLC and William Wall Ill’s Motion to Dismiss the Amended Complaint or, in the Alternative, Transfer of Venue (DE 19); Plaintiffs Exhibit Icons and Russell Etling Company’s Motion for Leave to File a Brief Surreply to Defendants’ Reply Memorandum (DE 88); Plaintiffs Exhibit Icons and Russell Etling Company’s Request for Oral Argument on Defendants’ Motion to Dismiss for Lack of Jurisdiction (DE 92); Defendant XP Companies, LLC, XP Entertainment, LLC and William Wall Ill’s Motion to Dismiss Second Amended Complaint for Lack of Personal Jurisdiction, or, in the Alternative, Change of Venue (DE 99); Plaintiffs Exhibit Icons and Russell Etling Company’s Request for Oral Argument on Defendants’ XP Companies, LLC, XP Entertainment, LLC and William Wall Ill’s Motion to Dismiss Verified Second Amended Complaint (DE 112); Defendant XP Apparel, LLC’s Motion, and Joinder in the Defendants’ Motion, to Dismiss Second Amended Complaint for Lack of Personal Jurisdiction or, in the Alternative, Change of Venue (DE 115); Plaintiffs Exhibit Icons and Russell Etling Company’s Request for a Hearing on Defendant XP Apparel, LLC’s Motion to Dismiss for Lack of Jurisdiction (DE 119); Plaintiffs Exhibit Icons and Russell Etling Company’s Motion to Strike Affirmative Defenses and Portions of Defendants’ Answer (DE 126) and Plaintiffs Exhibit Icons and Russell Etling Company’s Motion to Strike Affirmative Defenses and Portions of Defendants’ Answer (DE 132).
MOTIONS RELATING TO PERSONAL JURISDICTION
I. Background
According to the Second Amended Complaint (“SAC”), Plaintiff Exhibit Icons (“El”) is a Florida limited liability company and Plaintiff Russell Etling Company (“Etling”) is a Florida corporation. (SAC ¶ ¶ 2-3.) Defendants XP Companies, LLC (“XP Companies”), XP Entertainment, LLC (“XP Entertainment”) and XP Apparel, LLC (“XP Apparel”) are Colorado limited liability companies. Defendant William Wall resides in Colorado. (SAC ¶ ¶ 4-7.) The eight-count SAC alleges: (1) breach of contract against XP Companies, XP Entertainment and Wall (count one); (2) breach of the duty of good faith and fair dealing against XP Companies, XP Entertainment and Wall (count two); (3) declaratory relief against XP Companies, XP Entertainment and Wall (count three); (4) money owed against XP Companies, XP Entertainment and Wall (count four); (5) intended third-party beneficiary breach of contract against XP Companies, XP Entertainment and Wall (count five); (6) fraud in the inducement against XP Apparel and Wall (count six); (7) negligent misrepresentation in the inducement against XP Apparel and Wall (count seven) and (8) promissory estoppel against XP Apparel (count eight).
In 2003, Etling entered into a long-term licensing agreement to produce a traveling exhibition of the Napoleon Collection, a collection of personal items and memorabilia associated with Napolean Bonaparte. (SAC ¶ ¶ 12-13.) Etling’s responsibilities included providing supporting work to the Collection, including design, development and marketing work to be performed in Florida. (SAC ¶ 14.) In March of 2006, Etling and El entered into an agreement
Thereafter, El entered into an agreement with XP Companies for XP Companies to be the exclusive tour operator of the Napoleon Tour, beginning June 1, 2007 and ending April 30, 2012. During the first year of the agreement, XP Companies was to pay El one million dollars. XP Companies was referred to in the agreement as XP Exhibits and Mr. Wall signed the agreement on behalf of XP Exhibits. (Sept. 8, 2006 Contract, attached to DE 1.) Plaintiffs allege that Defendants XP Companies, XP Entertainment and Mr. Wall breached their contractual obligations as Napoleon tour operator and failed to pay amounts due under the contract. (SAC ¶ ¶ 50-73.) In addition, Plaintiffs allege that XP Apparel and Mr. Wall represented to Plaintiffs that XP Apparel and the other corporate defendants were one and the same entity in order to induce them to enter into the aforementioned contract. (SAC ¶ ¶ 84-97.)
Defendants XP Companies, XP Entertainment and Wall moved to dismiss the first amended complaint for lack of personal jurisdiction on December 4, 2007 (DE 19). On March 3, 2008, the Court granted Plaintiffs’ motion for leave to take jurisdictional discovery and permitted the parties to file amended responses/replies to Defendants’ motion to dismiss (DE 40). Defendants XP Companies, XP Entertainment, Wall and XP Apparel now argue that Plaintiffs cannot establish either specific or general jurisdiction over them.
The Court will examine the evidence garnered by the parties with respect to the motion to dismiss for lack of personal jurisdiction.
Specific Jurisdiction Evidence
In early 2006, Gary Stern, the president of El, had a business discussion with Zvi Harpaz, the operator of a marketing and placement services in Boca Raton, Florida, about the Napoleon Collection. (Harpaz Aff. ¶ 2; Stern Aff. ¶ 2, attached to DE 30 and 31.) Mr. Harpaz then discussed the Napoleon Collection with Jeremy Fey, who worked for XP Apparel, and Jeremy Fey told Mr. Harpaz that he thought his company would be interested in obtaining the touring rights and that he would discuss it with Mr. Wall, the president of “XP.” 1 Subsequently, Jeremy Fey telephoned Mr. Harpaz and said that “they had a strong interest” in obtaining the touring rights and a contract was signed by Mr. Wall on behalf of XP Apparel to secure Mr. Harpaz’s commission. Jeremy Fey instructed Mr. Harpaz to have Mr. Stern call Mr. Wall. (Harpaz Aff. ¶ ¶ 4-8; Stern Aff. ¶ 3.)
Mr. Stern then called Mr. Wall and was told to call Jeremy Fey who was his “point man” with respect to the Napoleon Collection. (Stern Aff. ¶4.) When Mr. Stern called Jeremy Fey, he stated that Mr. Wall and XP were very interested in purchasing the rights to market the Napoleon Collection. On April 12, 2006, Jeremy Fey emailed Mr. Stern that Mr. Wall wanted Mr. Stern to make the offer. (Stern Aff. ¶ 5.)
Mr. Stern and Jeremy Fey had “hundreds of follow-up telephone conversations” and communicated nearly every day by telephone, email and facsimile regarding the terms for “defendants”
2
to obtain the tour rights to the Napoleon Collection. Jeremy Fey called Mr. Stern in Florida at least 188 times from April 13, 2006 through June 28, 2006. (Stern Aff. ¶ 6.)
In late March or early April of 2006, Mr. Stern received a draft contract from Jeremy Fey, sent to him in Florida via email. In June and August of 2006, Mr. Stern met with Jeremy Fey and Mr. Wall in Colorado and then again with Jeremy Fey in Georgia. Final contract terms were agreed to in principle. (Stern Aff. ¶ 7.)
In September of 2006, El entered into the contract with XP Companies, LLC, which was referred to in the contract as “XP Exhibits” and “XP Sports and Entertainment.” The contract provided that XP Companies would pay El $75,000.00. (September 8, 2006 Contract, DE 1.) According to the SAC, XP Apparel and Wall induced El to enter into the contract with these entities by representing these entities as divisions of a large conglomerate that were legally one and the same. (SAC ¶ 1.) XP Apparel and Wall sought to shift liability to XP Companies, LLC, a nonoperational and defunct entity, in order to shield XP Apparel from liability under the contract. (SAC ¶ ¶ 2, 75.)
In March 2007, Mr. Stern met with Jeremy Fey and Mr. Wall in Denver. They had decided to pursue promotion of the Napoleon Collection in exhibit space rented in Florida. Mr. Stern was asked to suggest sites and Plaintiffs then explored sites in Miami, Fort Lauderdale and West Palm Beach. On March 20, 2007, Jeremy Fey sent Russell Etling, Etling’s President, an email with a budget and numerous questions about the Miami venue. (Stern Aff. ¶ 11.) Jeremy Fey told Mr. Stern that “defendants” would lease three storefronts in West Palm Beach and sent him a copy of an email he sent to a representative of CityPlace in West Palm Beach. Jeremy Fey also sent Plaintiffs a schedule which contemplated him living in Florida for at least 30 consecutive weeks while he was managing the exhibit. (Stern Aff. ¶ 12.) Jeremy Fey also told Mr. Stern that Mr. Wall was his “best friend” and that Mr. Wall would be traveling to Florida to confer about this transaction. (Stern Aff. ¶ 13.)
William Wall, the president of XP Companies and XP Entertainment, states that neither XP Companies nor XP Entertainment have any offices, real property or bank accounts in the state of Florida. No representative of XP Companies or XP Entertainment has traveled to Florida for any business dealings with El. Mr. Wall first met Mr. Stern in Colorado and the Agreement between El and XP Companies was signed there. (DE 8-2.) Jeremy Fey first met Mr. Stern and Mr. Etling in South Carolina to view the Napoleon exhibit. Jeremy Fey next met Mr. Stern in Georgia at a USA volleyball event where XP Companies was present for the purpose of apparel sales. Mr. Stern traveled there to see how XP Companies conducted its events. Jeremy Fey never traveled to Florida to meet with Plaintiff or Plaintiffs’ representatives. Nor have any other XP Companies representatives traveled to Florida to meet with Plaintiffs. Jeremy Fey’s communications with Plaintiffs were by telephone and email. According to Jeremy Fey, XP Companies did not solicit or approach Plaintiffs to enter into any agreement to exhibit or display the Napoleon exhibit (DE 8-3.) Mr. Wall has never been to Florida on business. (Wall Dep. 153.)
XP Entertainment, LLC, which uses the trade name “XP Events” manages facilities and events for clients in Jacksonville and Sunrise, Florida as well as locations in North Carolina and Arizona. (Ex. 21 to Wall Dep. Alan Fey Dep. 7-8.) In 2006, XP Events entered into a ten-year contract with the Jacksonville Jaguars after the Jaguars sent them a “request for proposal” to manage the day-to-day game operations for retail sales at their venue on ten game days. (A. Fey Dep. 9-13, 99.) The Jaguars pay XP Events a management fee with the potential for more revenue, depending on the performance of the season (A. Fey Dep. 17, 55.) There are 30 to 50 employees who are hired by XP Events. (A. Fey Dep. 13,15.)
XP Events does not lease any space in the Jaguar stadium. (A. Fey Dep. 16, 100.) XP Events’ buyer in Arizona places the merchandise order for the Jaguars, which is billed and sent to the Jaguars directly. (A. Fey Dep. 15-17.) XP Events helps in the purchasing of merchandise, but does not own the merchandise. (A. Fey Dep. 13.) The merchandise is approved and paid for by the Jaguars. (A. Fey Dep. 16.) XP Events has an office at the stadium where one person works. (A. Fey Dep. 16.) Alan Fey, the president of XP Entertainment, has visited Jacksonville once in connection with its business with the Jaguars. (A. Fey Dep. 4, 47-48.)
Jennifer Simmons is the director of merchandising for the Florida Panthers. (Simmons Dep. 3.) In 2006, she received an information packet from XP Events. (Simmons Dep. 6.) After an initial meeting with Alan Fey in 2006, the parties continued with negotiations in 2007. (A. Fey Dep. 22-23; Simmons Dep. 7-8.) Even before a contract had been entered into, the Panthers and XP Events agreed that XP Events would order merchandise for the Panthers, which XP Events did. (A. Fey 51-53; Simmons Dep. 9.) During the course of negotiation, Alan Fey came to Florida two or three times. (Simmons Dep. 17.) A contract was eventually signed in late June of 2007 to begin operations in October of 2007. (A. Fey Dep. 24.) After the contract was signed, Alan Fey came to Florida three or four times. (A. Fey Dep. 48.)
The first game for the Panthers, managed by XP Events, occurred in late September of 2007. (Simmons Dep. 23.) The season runs from October through the middle of April. (Simmons Dep. 38.) Pursuant to the contract, XP Events was granted the exclusive right to sell Panthers’ licensed merchandise during the Panthers’ games. (Contract, Ex. 1 to Simmons Dep.) XP Events was paid a significant amount of money 3 upfront and then a percentage of royalties. (A. Fey Dep. 56; Simmons Dep. 28, 40.)
XP Events supplies all the Panthers’ merchandise and has storage facilities at the arena. (A. Fey Dep. 27; Simmons Dep. 10-11.) XP Events has two full-time employees and between 15-40 part time workers who work the kiosks. (A. Fey Dep. 24-25 Simmons Dep. 11.) XP Events orders product for the store on a continuing basis. (Simmons Dep. 13.) The merchandise is ordered out of state and shipped to Florida and the bills are paid out of the Denver office. (A. Fey Dep. 53-54.) XP Events works with Ms. Simmons on a weekly basis regarding ordering merchandise, the day-to-day operation of the stores, customer service and promotion. (Simmons Dep. 14-15, 30.) XP Events takes care of art and design work and has given input on the Panthers’ new point of sale software system. (Simmons Dep. 24, 32.) Two buyers from XP Events’ Phoe
XP Events is in control of the store space and storage area the entire year. (Simmons Dep. 20-21.) XP Events does not manage the stores when the Panthers are not playing. (Simmons Dep. 5.) When payment is made to the Panthers by XP Events, it is done by check which is given to the Panthers in Florida. (Simmons Dep. 22.) Pursuant the contract, XP Events is required to purchase a certain number of tickets to the arena. (Simmons Dep. 31.) The volume of sales sold by XP Events in 2007 was substantial. 4 (Simmons Dep. 39.)
The contract is governed by Florida law and must be litigated in Florida. (A. Fey Dep. 41-42.) XP Events was required to maintain insurance that identified the Panthers as additional insureds. (Section 3.10, Contract, Ex. 32 to Wall Dep.) XP Events has a bank account in Florida and a cash room at the arena. (A. Fey Dep. 32; Simmons Dep. 40.) XP Events is responsible for paying the Florida sales tax. (Simmons Dep. 41.)
XP Events is not currently soliciting any business contacts in Florida. (A. Fey Dep. 71.) XP Events does not own any real estate in Florida. (A. Fey Dep. 32-33.) XP Events has no other written contracts with any other Florida business besides the Jaguars and the Panthers. (A. Fey Dep. 33.) XP Events has bank accounts with national banks that have branches in Florida. Its accounts were set up in Colorado and XP Events uses those banks in its contracts with the Panthers. (A. Fey Dep. 102-03.)
According to William Wall, who acts as the manager of XP Apparel, XP Apparel does not systematically transact business in Florida. Its only offices are located in Colorado. XP Apparel is a licensing company, specializing in sports merchandising, including the manufacturing of apparel and sports-related memorabilia. It maintains no bank accounts in Florida, has no employees in Florida and has no warehouses, offices, retail locations or leases of interest in real property in Florida. Its only contacts involve internet retail sales and telephone sales made by consumers to purchase its products. All sales are made through its Colorado office. XP Apparel has not conducted or attended any exhibitions or trade shows in Florida nor has any representative traveled to Florida for business. (Wall Aff. ¶¶2-10, DE 116.)
XP Events buys some of XP Apparel’s t-shirts and hats to sell at the BankAtlantic Center and in Jacksonville, Florida. (A. Fey Dep. 36.) With respect to the Jacksonville Jaguars, the amount of XP Apparel merchandise is “minimal” and with respect to the Panthers, the amount of XP Apparel merchandise is about ten percent of what XP Events sells in Florida. (A. Fey Dep. 75-77.)
On April 18, 2008, Mr. Walter Haigh purchased a visor cap at Walt Disney World in Lake Buena Vista, Florida with a tag that states “officially licensed by XP Apparel” and “www.XPApparel.com-100% Cotton-Made in Vietnam.” (Haigh Aff. ¶ 2, attached to DE 120.)
II. Legal Standard
The plaintiffs burden in alleging personal jurisdiction requires that the plaintiff establish a prima facie case of personal jurisdiction over a nonresident defendant. A prima facie case is established if the plaintiff presents enough evidence to withstand a motion for directed
III. Discussion
A. Personal Jurisdiction over Defendant XP Companies
Plaintiffs assert specific jurisdiction over XP Companies and point to Jeremy Fey’s communications with Plaintiff by way of telephone calls, emails and facsimiles
The determination of personal jurisdiction over a nonresident defendant requires a two-part analysis. When jurisdiction is based on diversity, Rule 4(e) of the Federal Rules of Civil Procedure requires that the assertion of jurisdiction be determined by the state long-arm statute. If there is a basis for the assertion of personal jurisdiction under the state statute, the Court must next determine whether: (1) sufficient minimum contacts exist to satisfy the Due Process Clause of the Fourteenth Amendment and that (2) maintenance of the suit does not offend “traditional notions of fair play and substantial justice.”
International Shoe Co. v. Washington,
Minimum contacts in the context of specific jurisdiction involve three criteria: First, the contacts must be related to the plaintiffs cause of action or have given rise to it. Second, the contacts must involve some purposeful availment of the privilege of conducting activities within the forum, thereby invoking the benefits and protections of its laws. Finally, the defendant’s contacts within the forum state must be such that it should reasonably anticipate being haled into court there.
See Sculptchair, Inc. v. Century Arts, Ltd.,
The Eleventh Circuit has stated that a contract with an out-of-state party cannot, standing alone, automatically establish sufficient minimum contacts.
Francosteel Corp. v. M/V Charm,
In support, Defendant cites
Hartcourt Cos., Inc. v. Hogue,
Defendant also points to
Borg-Warner Acceptance Corp. v. Lovett & Tharpe, Inc.,
Of course, in examining the telephone calls and emails, the Court must look to whether Defendant “purposefully directed” its actions towards Florida.
Burger King,
Next, the Court concludes that finding XP Companies amenable to personal jurisdiction in Florida comports with “traditional notions of fair pay and substantial justice.” In this Circuit, the factors to decide whether the assertion of personal jurisdiction comports with “traditional notions of fair play and substantial justice” are: 1) the burden on the defendant in defending the lawsuit; 2) the forum state’s interest in adjudicating the dispute; 3) the plaintiffs interest in obtaining convenient and effective relief; 4) the interstate judicial system’s interest in obtaining the most efficient resolution of controversies and 5) the shared interest of the states in furthering fundamental substantive social policies.
Cronin v. Washington Nat. Ins. Co.,
The Court finds that Florida has an interest in adjudicating a dispute that revolves around an out-of-state corporation engaged in a breach of contract for an exhibition in Florida. Furthermore, Plaintiffs have sued numerous Defendants, over whom the Court can also assert personal jurisdiction, and it is in the interstate judicial system’s interest to litigate this case in one forum. Plaintiffs will also obtain the most convenient and effective relief by litigating this case in Florida. Lastly, “modern transportation and communication have made it much less burdensome” for an out-of-state Defendant to be sued in another state.
Cable/Home,
B. Personal Jurisdiction over Defendant XP Entertainment
In order for a court to exercise general jurisdiction in Florida, the contacts must be especially pervasive and substantial to satisfy section two of the Florida long-arm statute 48.193.
General Cigar Holdings, Inc. v. Altadis S.A.,
A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.
Id.
General jurisdiction arises from a defendant’s contacts with Florida that are not directly related to the cause of action being litigated and connexity between a defendant’s activities and the cause of action is not required.
Consolidated Dev. Corp. v. Sherritt, Inc.,
As there is no requirement of a connection between the defendant’s activities and the cause of action, the Due Process requirements are much more stringent for general personal jurisdiction than for specific personal jurisdiction. Due Process requires a showing of substantial, persistent, continuous, and systematic business contacts between the defendant and the forum state.
Helicopteros,
The evidence shows that XP Entertainment has two lucrative contracts, one of which extends over ten years, with two professional sports teams in the state of Florida for the sale of apparel. XP Entertainment has permanent employees, offices and storage facilities in Florida to manage these contractual obligations. The president of XP Entertainment, Alan Fey, has traveled to Florida in connection with these contracts and buyers for XP Entertainment have also visited Florida on business-related duties. XP Entertainment orders product for the Panthers’ store on a continuing basis and ships merchandise to Florida. Furthermore, XP Entertainment works on a weekly basis with the Panthers
While XP Entertainment attempts to minimize these contacts, the focus of its attack on the assertion of personal jurisdiction is primarily a legal one. Namely, XP Entertainment argues that its contacts with the Panthers and Jaguars did not commence until after the filing of the Complaint in this action and therefore must not be considered. In support, Defendant points to
Carib-USA Ship Lines Bahamas Ltd. v. Dorsett,
C. Personal Jurisdiction over XP Apparel and Mr. Wall
Plaintiffs contend that jurisdiction can be asserted over XP Apparel and Mr. Wall pursuant to both specific and general jurisdiction. With respect to specific jurisdiction, Plaintiffs claim that Jeremy Fey, XP Apparel’s agent, sought out Plaintiffs for a business relationship that resulted in “the misrepresentations and promises” that are the subject of the claims for fraud in the inducement, negligent misrepresentation and promissory estoppel against XP Apparel. With respect to general jurisdiction, Plaintiffs point to XP Apparel’s sub
It appears that Plaintiff is claiming specific jurisdiction under Fla. Stat. 48.193(l)(b) which provides:
(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself, and if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from doing of any of the following acts:
(b) Committing a tortious act within this state.
Fraud in the inducement and negligent misrepresentation are torts that can establish personal jurisdiction.
8
OSI Industries, Inc. v. Carter,
The Court next turns to minimum contacts. When an intentional tort is alleged, personal jurisdiction may be supported over a non-resident defendant who has no other contacts with the forum.
Colder v. Jones,
Here, there is uncontested evidence that numerous telephone calls and emails were sent by XP Apparel to Plaintiffs.
See Neal v. Janssen,
With respect to personal jurisdiction over Mr. Wall for these tort claims, the Court notes that individual officers are personally liable for torts they commit, even if those torts arise from acts performed within the scope of their employment.
See Florida Specialty, Inc. v. H 2 Ology, Inc.,
In response to Plaintiffs’ Second Amended Complaint, Defendants filed a Second Amended Answer, asserting numerous affirmative defenses. Plaintiffs have moved to strike several of Defendants’ affirmative defenses and portions of their answer.
Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, a party may move to strike “any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter” within the pleadings. Fed.R.Civ.P. 12(f). Motions to strike, however, are generally disfavored by the court.
See Williams v. Jader Fuel Co.,
Plaintiffs move to strike several affirmative defenses on the basis that they have not been pled with adequate specificity to give fair notice of the defenses asserted. The Court agrees that the defenses alleged in paragraph 99,118 and 119 fail to provide adequate specificity. That failure, however, does not render these Affirmative Defenses insufficient as a matter of law and subject to a motion to strike. Instead, the lack of specificity is best dealt with by a motion for a more definite statement under Rule 12(e) of the Federal Rules of Civil Procedure. That Rule requires a more definite statement when a pleading is “vague” or “ambiguous.” Fed. R.Civ.P. 12(e). Therefore, the Court will allow Defendants the opportunity to amend these affirmative defenses to provide the necessary specificity.
Next, the Court notes that several of the affirmative defenses are not affirmative defenses, but a denial of an allegation lodged against Plaintiffs by Defendants. As such, paragraphs 113,114 and 117 must be stricken.
See In re Rawson Food Service, Inc.,
Paragraph 110 states that “The purpose of any alleged agreement has been commercially frustrated because of the impossibility or impracticability of performance, preventing plaintiffs’ claims for breach of contract.” Plaintiffs state that this defense is improper because commercial impracticability only applies to contracts involving the sale of goods. Defendants respond that the “impracticability defense” does not just apply to the sale of goods. The Court finds that this affirmative defense suffers from several pleading deficiencies. First, it is unclear if Defendants are claiming common law “impracticability of performance” as a subset of impossibility of performance,
see Valencia Ctr., Inc. v. Publix Super Markets, Inc.,
Lastly, regarding paragraphs 24 and 32, Plaintiffs note that Defendants have agreed to amend these paragraphs to identify which Defendants are admitting or denying the allegations. Thus, Defendants amended answer shall include this amendment. The Court has examined paragraphs 33 through 37 and finds nothing improper about Defendants’ response.
CONCLUSION
It is hereby ORDERED AND ADJUDGED as follows:
1) Defendants XP Companies, XP Entertainment and Wall’s Motion to Dismiss the Amended Complaint or, in the Alternative, Transfer of Venue (DE 19) is DENIED.
2) Plaintiffs’ Motion for Leave to File a Brief Surreply to Defendants’ Reply Memorandum (DE 88) is DENIED.
3) Plaintiffs’ Request for Oral Argument on Defendants’ Motion to Dismiss for Lack of Jurisdiction (DE 92) is DENIED.
4) Defendants XP Companies, XP Entertainment and Wall’s Motion to Dismiss Second Amended Complaint for Lack of Personal Jurisdiction, or, in the Alternative, Change of Venue (DE 99) is DENIED.
5) Plaintiffs’ Request for Oral Argument on Defendants’ XP Companies, LLC, XP Entertainment, LLC and William Wall Ill’s Motion to Dismiss Verified Second Amended Complaint (DE 112) is DENIED.
6) Defendant XP Apparel’s Motion, and Joinder in the Defendants’ Motion, to Dismiss Second Amended Complaint for Lack of Personal Jurisdiction or, in the Alternative, Change of Venue (DE 115) is DENIED WITHOUT PREJUDICE.
7) Plaintiffs’ Request for a Hearing on Defendant XP Apparel, LLC’s Motion to Dismiss for Lack of Jurisdiction (DE 119) is DENIED.
8) Plaintiffs’ Motion to Strike Affirmative Defenses and Portions of Defendants’ Answer (DE 126) is DENIED AS MOOT.
9) Plaintiffs’ Motion to Strike Affirmative Defenses and Portions of Defendants’ Answer (DE 132) is GRANTED IN PART AND DENIED IN PART.
DONE AND ORDERED.
Notes
. The Stern affidavit does not identify to which company "XP” refers.
. The Court assumes "defendants” include XP Companies, XP Entertainment and Mr. Wall. At the time this affidavit was created, XP Apparel was not a defendant in the case.
. The precise amount is under seal and can be found on page 56 of Alan Fey's deposition.
. The exact figure is under seal and can be found on page 39 of Jennifer Simmons' deposition.
.
Borg-Wamer
also looked at personal jurisdiction cases involving non-resident purchasers for one-time transactions.
Future Tech.,
. With respect to Mr. Wall, the Court finds that there is no long-arm jurisdiction over him related to the contract entered into with Plaintiffs. None of Mr. Wall’s acts are alleged to have been taken outside his corporate duties.
See Doe v. Thompson,
. Under Defendant's approach to personal jurisdiction, a Florida resident could escape personal jurisdiction in Florida because he did not live in Florida at the time of the act in question. Of course, such an argument would fail.
See Haueter-Herranz v. Romero,
. XP Apparel states that Plaintiffs' claims for negligent misrepresentation, a non-intentional tort, and promissory estoppel, a non-tort claim, cannot establish personal jurisdiction. The long-arm statute provides for long-arm jurisdiction over a tort and does not distinguish between intentional and negligent torts.
See OSI Industries,
. Notably,
Posner v. Essex Ins. Co., Ltd.,
which was decided prior to
Wendt,
went even further and interpreted Florida Statutes § 48.193(l)(b) to mean that a defendant who commits a tort that causes injury in Florida is subject to personal jurisdiction even if the act that caused the injury occurred entirely out of state.
See Posner v. Essex Ins. Co., Ltd.,
. Defendant's reliance on
McLean Financial Corp. v. Winslow Loudermilk Corp.
for the holding that alleged misrepresentations made in telephone conversations between plaintiffs in Florida and defendants in Virginia did not provide a basis for exercising personal jurisdiction is unpersuasive.
McLean,
. In
Bonner v. City of Prichard,
. Although Eaton and the binding Fifth Circuit cases it relies upon address subject matter jurisdiction, the Court concludes that the reasoning of these cases apply with equal force to personal jurisdiction.
.The Court notes that XP Apparel may renew its arguments in a summary judgment motion. Of course, if material issues of fact exist on the merits of the claim, then the issue will need to be presented at trial.
See Nissim,
. Given that Plaintiff has established specific jurisdiction over XP Apparel, it is unnecessary to reach the question of general jurisdiction. Nonetheless, the Court observes that the evidence provided by Plaintiff about the sale of XP Apparel merchandise purchased by Florida vendors constitutes
de minimis
and fortuitous contacts which are insufficient to establish general jurisdiction over XP Apparel.
See TRW Vehicle Safety Systems, Inc. v. Santiso,
. The tort claims and the contract-related claims arise out of a common nucleus of operative facts. Thus, the doctrine of "pendent personal jurisdiction" comes into play. Under this doctrine, as long as personal jurisdiction can be asserted over Mr. Wall for the tort claims, there would be also be personal jurisdiction over the contract-related claims.
See Cincinnati Ins. Co. v. Belkin Corp.,
No. 07-0615-WS-C,
.The Court notes that Defendants made the alternative argument that venue is improper. The causes of action for contract and tort arose in the Southern District of Florida. Therefore, venue is proper in this district. 28 U.S.C. § 1391. Furthermore, Defendants have not set forth sufficient grounds to establish that a change of venue is appropriate pursuant to 28 U.S.C. § 1404, especially given that there is a presumption in favor of a plaintiff’s choice of forum.
See Tampa Bay Storm, Inc. v. Arena Football League, Inc.,