NHB Advisors, Inc. (“NHB”), the plaintiff in an underlying suit against multiple defendants for various claims in connection with the sale of a corporation, appeals an order granting defendant Joseph Czyzyk’s motion to dismiss for lack of personal jurisdiction. Because the plaintiff suсcessfully alleged the existence of a conspiracy and Czyzyk’s participation in it, and because the plaintiffs successfully alleged that other members of the conspiracy committed a tortious act in Florida, we reverse.
Factual Background
Before filing for bankruptcy protection under Chapter 11 in June 2009, Butler Services International, a Maryland corporation with a headquarters in Fort Laud-
The рlaintiff, NHB, as the liquidator of the Butler Liquidating Trust for Butler Services International and related corporations (collectively “Butler”), filed an Amended Complaint against McBreen & Kopko (“M & K”), Czyzyk, and a number of other defendants, including Butler’s officers and directors, for claims related to the management and ultimate sale of Butler. The gravamen of the complaint is that several of the defendants participated in a conspiracy to purchase Butler’s assets for far below their value or, failing that, to set up a compеting company which would steal business from Butler using confidential information obtained from Butler. Czyzyk, a California resident, is the President and CEO of Mercury Air Group, a California corporation that unsuccessfully offered to purchase Butler’s assets.
The amended comрlaint alleged that, starting at least as early as December 2008, Edward Kopko, the CEO of Butler, provided confidential information to Czy-zyk and to Frederick Kopko, a partner at M & K and a board member at various Butler entities, as part of a conspiracy to either acquire Butler very inexpensively or to take key Butler employees and compete with Butler. The purportedly confidential information included details regarding Butler’s employees — such as their salaries, locations, and job descriptions — as well as details on the leases Butler held on all its locations in the United States. Edward sent an e-mail to Frederick and Czyzyk, attaching a spreadsheet that contained data on all of Butler’s U.S.-based staff. The spreadsheet was password-protected, but Edward provided Frederick and Czy-zyk with the password to open the document. Frederick, in turn, was allegedly “the lynchpin in the transmission of Butler confidential, password protected information consisting of Butler’s employees to Mercury.”
In February 2009, while he was alreаdy in Miami on unrelated business on behalf of Mercury, Czyzyk drove to Fort Lauder-dale and had dinner with Edward. Czyzyk claimed in an affidavit that the purpose of the dinner was to extend his condolences with respect to Edward’s wife’s passing, which had occurred four to five years еarlier. During this dinner, Czyzyk and Edward discussed Mercury’s potential purchase of Butler. The amended complaint alleged that the “purchase” discussed was “no more than conspirators discussing how Mercury could steal Butler’s business.”
On March 5, 2009, Edward made a bid on behalf of Merсury to be assigned all of Butler’s customer relationships for no money, but for some sort of earn out that could be used to pay the lenders above the amount of the accounts receivable which the lenders could liquidate. However, Butler’s secured lеnders rejected the offer. The next day, March 6, 2009, Edward and Frederick resigned from Butler, taking several senior Butler sales executives with them. On March 7, 2009, Edward and a Mercury subsidiary called “Mercury Z” began soliciting Butler’s customers. Using the employee lists, Edward and Mercury Z were аble to take away some of Butler’s consultants and customers.
In June 2009, Butler filed for bankruptcy protection under Chapter 11. Butler was later sold for $27 million, which was lower than previous offers that had been made before Edward left the company.
Claims Against Czyzyk
The amended complaint alleges two causes of action against Czyzyk. Count VI is against Czyzyk and Mercury for aiding and abetting breach of fiduciary duty by acting “improperly and without privilege with the purpose of materially aiding and
Count VII alleges a conspiracy to breach fiduciary duty against Czyzyk and other defendants. Count VII alleges that Edward, Frederick, Czyzyk, Mercury, and M & K conspired to breach Edward’s and Frederick’s fiduciary duties to Butler “by collectively concocting the plan to use Butlеr’s confidential information, stolen by password protected e-mail, to structure a competing company to Butler, all while Edward and Frederick were officers and directors of Butler.” Count VII further alleges that the conspiracy was successful in taking cliеnts from Butler and, as a result, Butler was damaged.
Jurisdictional Allegations Regarding Czyzyk’s Contacts with Florida
The amended complaint alleged that jurisdiction was proper over Czyzyk under section 48.193(l)(b), Florida Statutes, because he committed a tortious act within this state. The amended complaint contains two factual allegations against Czy-zyk that are relevant for jurisdictional purposes: (1) he was the recipient of e-mail with confidential data on Butler employees; and (2) he met with Edward in Fort Lauderdale — during the time that he аnd several other defendants were conspiring to have Mercury steal Butler’s business using Butler’s confidential information — to discuss how Mercury could steal Butler’s business.
Motions to Dismiss for Lack of Personal Jurisdiction
Both M & K and Czyzyk moved to dismiss for lack of personal jurisdiction. Czyzyk submitted an affidavit in support of his motion to dismiss. As noted abоve, Czyzyk acknowledged that he met with Edward in Fort Lauderdale to express condolences over the passing of Edward’s wife, but claimed that he only briefly discussed the potential sale of Butler, that he spoke on behalf of Mercury, and that there was nothing tortious about the nature of the discussions. Czyzyk also acknowledged speaking with Edward approximately one time on the telephone regarding Mercury’s potential acquisition of Butler, but denied making any tortious communications into Florida. Czyzyk further stated that over thе last four years, in his capacity as CEO of Mercury, he visited customers in Florida approximately twelve to fourteen times. However, none of these visits were related to the subject matter of this lawsuit. Czyzyk has never been a resident of Florida and has no othеr contacts with Florida.
The trial court denied M & K’s motion to dismiss,
Analysis
A trial court’s ruling on a motion to dismiss for lack of personal jurisdiction is reviewed de novo. Wendt v. Horowitz,
In Venetian Salami Co. v. Parthenais,
“Initially, the plaintiff may seek to obtain jurisdiction over a nonresident defendant by pleading the basis for service in the language of the statute without pleading the supporting facts.” Venetian Salami,
Pursuant to Florida’s long-arm statute, a nonresident defendant may be subject to specific jurisdictiоn under section 48.193(1), Florida Statutes, where the person commits any of the acts enumerated in the subsection within Florida and the cause of action arose from the act. A Florida court has specific jurisdiction over a defendant who commits “a tortiоus act within this state.” § 48.193(1)(b), Fla. Stat.
The inquiry under the statutory prong of Venetian Salami is not whether the tort actually occurred, but whether the tort, as alleged, occurred in Florida. See Hunt v. Cornerstone Golf, Inc.,
Moreover, if a plaintiff has successfully alleged a cause of action for conspiracy among the defendants to commit tor-tious acts toward the plaintiff, and if the plaintiff has successfully alleged that any member of that conspiracy committed tor-tious acts in Florida in furtherance of that conspiracy, then all of the conspirators are subject to the jurisdiction of Florida thrоugh its long-arm statute. See Wilcox v. Stout,
Here, the plaintiff pleaded with specificity facts supporting the existence of a conspiracy. Indeed, the plaintiff pleaded more than vague and conclusоry allegations. The amended complaint alleged that Czyzyk, along with other co-defendants, conspired to breach Edward’s and Frederick’s fiduciary duties to Butler “by collectively concocting the plan to use Butler’s confidential information, stolen by pаssword protected e-mail, to structure a competing company to Butler, all while Edward and Frederick were officers and
While Czyzyk’s mere receipt of confidential information about Butler may not have been tortious in and of itself, the factual allegation that Edward sent him confidential information about Butler does tend to demonstrate at least a colorable claim of the existence of a conspiracy and Czyzyk’s participation in it. And, although Czyzyk claimed in his affidavit that there was nothing tortious about his meeting with Edward in Florida to discuss the potential sale of Butler, this dоes not defeat personal jurisdiction. Under the statutory prong, the relevant question is not whether the tort actually occurred, but whether the tort, as alleged, occurred in Florida. Czy-zyk did not dispute that this meeting with Edward occurred in Florida. Furthermore, regardless of whether Czyzyk personally committed any tortious acts within the state of Florida, the plaintiff alleged with sufficient specificity that Czyzyk took part in a conspiracy where other principals committed tortious acts in Florida.
Accordingly, because the plaintiff successfully alleged the existence of a conspiracy and Czyzyk’s participation in it, and because the plaintiffs successfully alleged that other members of the conspiracy committed a tortious act in Florida, all of the conspirators are subject to thе jurisdiction of Florida through its long-arm statute.
Accordingly, we reverse the order granting Czyzyk’s motion to dismiss for lack of personal jurisdiction and remand for further proceedings.
Reversed.
Notes
. In a separate appeal, we affirmed the denial of M & K’s motion to dismiss for lack of personal jurisdiction. See McBreen & Kopko, LLP v. NHB Advisors, Inc.,
. Even if Czyzyk's actions were on behalf of Mercury, a corporate officer who commits fraud or other intentional misconduct outside of Florida is not protected by the corporate shield doctrine. Kitroser v. Hurt,