Robert Thomas v. Troy R. Brown , 504 F. App'x 845 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-12268
Non-Argument Calendar
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D. C. Docket No. 0:11-cv-62261-JIC
ROBERT THOMAS,
FREDERICK LAUFER, et. al.,
Plaintiffs-Appellants,
versus
TROY R. BROWN,
GARY S. DESBERG, et. al.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 23, 2013)
Before CARNES, BARKETT and ANDERSON, Circuit Judges.
PER CURIAM:
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Robert Thomas, Frederick Laufer and Bryan Kaufman (“Plaintiffs”) appeal
the district court’s order dismissing their suit for lack of personal jurisdiction.
According to the complaint, Plaintiffs are minority shareholders of Apex
Radiology Inc. (“Apex”), a Florida corporation. Plaintiffs sued the law firm of
Singerman, Mills, Desberg & Kauntz Co., L.P.A. (“Singerman Mills”) and eight
individual shareholders of Singerman Mills (collectively “Defendants”), alleging
numerous claims arising out of Defendants’ representation of Apex in a suit
against Franklin & Seidelmann, LLC (“F&S”).
In July of 2007, Apex entered into an Asset Purchase Agreement to sell all
of its assets to F&S. The initial proceeds were to be used to pay down Apex’s
debts and then distribute funds to shareholders on a pro-rata basis. After three
initial payments, F&S made no further payments to Apex. In May of 2008, Wade
Rome, the majority shareholder of Apex, hired Defendant Singerman Mills to
initiate litigation against F&S for discontinuing payments. This suit was brought
in federal court in Ohio. Singerman Mills is an Ohio law firm with a single office
in Beachwood, Ohio.
The action between F&S and Apex was ultimately arbitrated in Ohio, and
Apex received a net award. Plaintiffs allege that these funds were never divided
among the shareholders and they never received any of these proceeds. They
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allege that Defendants knew or should have known that there was cause for
concern about wiring the award to a bank account owned by Rome.
In the present lawsuit filed in the Southern District of Florida, Plaintiffs
assert claims for (1) breach of the attorney-client fiduciary duty; (2) breach of
fiduciary duty and duty of care; (3) breach of the Ohio Rules of Professional
Conduct for not obtaining waivers of conflict; (4) negligence; (5) gross
negligence; (6) conspiracy to commit civil theft; and (7) conspiracy to commit
civil theft or fraud.
Defendants filed a Motion to Dismiss for Lack of Jurisdiction, and the
district court ordered that discovery be conducted. After discovery was complete,
the district court granted Defendants’ Motion.
The district court held that Florida’s long-arm statute did not reach
Defendants’ conduct. Additionally, even if the long-arm statute did reach
Defendants’ conduct, Defendants did not have sufficient minimum contacts with
Florida to constitutionally subject them to jurisdiction in Florida. After thorough
review of the record, we affirm.
I.
We review a district court’s dismissal of an action for lack of personal
jurisdiction de novo. Licciardello v. Lovelady, 544 F.3d 1280, 1283 (11th Cir.
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2008). The plaintiff bears the burden of making out a prima facie case for
personal jurisdiction by presenting sufficient evidence to withstand a directed
verdict motion. Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino, 447
F.3d 1357, 1360 (11th Cir. 2006). The defendant then must “raise[ ], through
affidavits, documents or testimony a meritorious challenge to personal
jurisdiction.” Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 627 (11th Cir.
1996) (quotation omitted). Conclusory statements, “although presented in the
form of factual declarations, are in substance legal conclusions that do not trigger
a duty for Plaintiffs to respond with evidence of their own supporting
jurisdiction.” Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1215 (11th Cir.
1999).1 If the defendant provides sufficient evidence, “the burden shifts to the
plaintiff to prove jurisdiction by affidavits, testimony or documents.” Sculptchair,
94 F.3d at 627 (quotation omitted). If the plaintiff’s complaint and the defendant’s
evidence conflict, “the district court must construe all reasonable inferences in
favor of the plaintiff.” Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990). If
the forum’s long-arm statute provides jurisdiction over one claim, the district court
has personal jurisdiction over the entire case so long as the claims arose from the
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We agree with the district court that Plaintiffs’ argument that Defendants’
affidavits are conclusory and self-serving—and therefore insufficient to rebut the allegations of
the Complaint regarding personal jurisdiction—is without merit.
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same jurisdiction-generating event. See Cronin v. Washington Nat’l Ins. Co., 980
F.2d 663, 671 (11th Cir. 1993).
We apply a two-step inquiry in determining whether the exercise of personal
jurisdiction over a nonresident defendant is proper. Horizon Aggressive Growth,
L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162, 1166 (11th Cir. 2005). First, we
examine whether the exercise of jurisdiction would be appropriate under the forum
state’s long-arm statute. Id. Second, we examine “whether the exercise of
personal jurisdiction over the defendant would violate the Due Process Clause of
the Fourteenth Amendment to the United States Constitution, which requires that
the defendant have minimum contacts with the forum state and that the exercise of
jurisdiction over the defendant does not offend traditional notions of fair play and
substantial justice.” Id. (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 319
(1945)).
II.
Here, the district court first held that the court lacked personal jurisdiction
under the Florida long-arm statute. See Fla. Stat. §§ 48.193(1)(a), (b), (g), and (2).
The district court then held that, even if Florida’s long-arm statute reached
Defendants’ conduct, the Due Process Clause of the United State Constitution
prevented it from exercising personal jurisdiction over Defendants. The court
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found that Defendants lacked meaningful “contacts, ties, or relations” with
Florida. See Int’l Shoe, 326 U.S. at 319.
We agree with the district court that, even assuming arguendo that Florida’s
long-arm statute reaches Defendants’ conduct, the Due Process Clause prohibits
Florida courts from exercising jurisdiction over Defendants in this suit.2
A. Minimum Contacts
The Due Process Clause of the United States Constitution protects an
individual’s liberty interest in not being subject to the binding judgments of a
forum with which he has established no meaningful “contacts, ties, or relations.”
Id. at 319. Where a forum seeks to assert specific personal jurisdiction over a
nonresident defendant, due process requires that the defendant have “fair warning”
that a particular activity may subject him to the jurisdiction of a foreign sovereign.
See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985). “This fair
warning requirement is satisfied if the defendant has purposefully directed his
activities at residents of the forum, and the litigation results from alleged injuries
that arise out of or relate to those activities.” Licciardello, 544 F.3d at 1284
(internal quotation marks omitted). The defendant must have reasonably
2
Accordingly, we need not address the district court’s holding that Florida’s long-
arm statute does not reach Defendants’ conduct.
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anticipated being sued in the forum's courts in connection with his activities there.
Burger King Corp., 471 U.S. at 474. “Jurisdiction is proper where the defendant's
contacts with the forum proximately result from actions by the defendant himself
that create a substantial connection with the forum state.” Madara, 916 F.2d at
1516 (internal quotation marks omitted).
Applying these standards to the facts of this case, we hold that Defendants
do not have sufficient minimum contacts with the state of Florida. As the district
court noted, Defendants have no office, telephone, bank account, or property of
any kind in the state of Florida. The evidence is undisputed that Defendants do
not market themselves to Florida and did not conduct any matters related to this
lawsuit in Florida. Cf. Sculptchair, 94 F.3d at 631 (finding minimum contacts
partly because defendant “purposefully availed herself of the privilege of
conducting business in Florida by marketing . . . products in the state”). The only
contacts by Defendants with Florida regarding this lawsuit involved telephone and
electronic communications made with Florida-resident Plaintiffs Laufer and
Kaufman. Defendants were hired to represent Apex in an action brought in Ohio,
and the arbitration proceedings were not conducted in Florida. There is also no
evidence that Defendants ever traveled to Florida for anything connected with this
matter.
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Defendants did not purposefully avail themselves of conducting business in
Florida. Defendants did not solicit any work from Apex and were originally
contacted to represent Apex by Wade Rome, who was in Missouri, and Apex’s
counsel, who were in Missouri and Georgia. During Defendants’ representation of
Apex, no bills were ever mailed to Florida; instead, they were mailed to Missouri.
There were no legal documents filed in Florida, no legal documents signed in
Florida, no hearings in Florida, no depositions taken in Florida, and the arbitration
proceedings took place in Ohio. Cf. Robinson v. Giarmarco & Bill, P.C., 74 F.3d
253, 259 (11th Cir. 1996) (finding minimum contacts for nonresident attorney and
accountant when, inter alia, defendants knew that the will would be probated, and
the trust administered, in Florida and mailed all correspondence to the decedent in
Florida).
Plaintiffs argue that this case is similar to Sculptchair, Inc. v. Century Arts,
Ltd. In Sculptchair, this Court found that minimum contacts existed to justify
hauling two defendants into a Florida court. 94 F.3d at 631. But Plaintiffs’ case
here is factually distinct. In Sculptchair, the plaintiff was the owner and president
of a Florida company marketing, selling, and leasing a type of chair cover. Id. at
625-26. One of the defendants personally contacted the plaintiff seeking to obtain
an exclusive licensing agreement to manufacture and market these chair covers in
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Canada. Id. at 626. This agreement was ultimately signed in Florida, and two of
the defendants traveled from Canada to Florida to finalize the deal. Id. Months
later, another defendant traveled from Canada to Florida for a four day “logistical
meeting” with the plaintiff. Id. This Court found sufficient minimum contacts to
bring the defendant corporation and an individual associated with the corporation
into court in Florida. It was undisputed that the corporation “reached out” to
Florida. Id. at 631. Defendants had also structured the agreement, “envisioning
continuing and wide-reaching contacts with Sculptchair in Florida by seeking the
exclusive licensing agreement.” Id. (internal quotation marks omitted).
Here, Defendants did not reach out to Plaintiffs seeking representation; they
never traveled to Florida in relation to this case; and there were no papers or
agreements signed or filed in Florida. This minimal contact with Florida is not the
type that would “lead a person to reasonably expect the possibility of ensuing
litigation in a Florida court should some type of dissatisfaction or complications
arise.” Id. The fact that Apex is a Florida corporation and that Defendants spoke
on the phone with Apex shareholders in Florida does not establish that Defendants
would have “fair warning” that their activities related to this matter would subject
them to the jurisdiction of Florida. Cf. Burger King Corp., 471 U.S. at 472.
Accordingly, we conclude that Defendants do not have sufficient minimum
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contacts with the state of Florida.
B.
Because we conclude that Defendants do not have minimum contacts with
Florida, we need not address whether the exercise of jurisdiction would offend
“traditional notions of fair play and substantial justice.” Int’l Shoe, 326 U.S. at
316.
III.
For the foregoing reasons, we affirm the district court’s grant of
Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction.
AFFIRMED.
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