RMS Titanic, Inc. v. Kingsmen Creatives, LTD. ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13711
________________________
D.C. Docket No. 3:13-cv-00463-HES-TEM
RMS TITANIC, INC.,
PREMIER EXHIBITIONS, INC.,
Plaintiffs-Appellants,
versus
KINGSMEN CREATIVES, LTD,
KINGSMEN EXHIBITS, PTE, LTD,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 2, 2014)
Before ED CARNES, Chief Judge, DUBINA and SILER, * Circuit Judges.
PER CURIAM:
*
Honorable Eugene E. Siler, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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The plaintiffs, RMS Titanic, Inc. and Premier Exhibitions, Inc. (collectively,
Premier), put on museum-quality exhibitions of artifacts recovered from the wreck
site of the Titanic. Premier sued two Singapore corporations, Kingsmen Creatives
and Kingsmen Exhibits (collectively, Kingsmen), alleging that they had used
Premier’s confidential information or trade secrets to stage their own competing
Titanic exhibition in China. The district court granted Kingsmen’s motion to
dismiss for lack of personal jurisdiction because it found that Florida’s long arm
statute did not provide it with personal jurisdiction over the Kingsmen entities.
This is Premier’s appeal.
I.
Premier is made up of two entities, both of which are Florida corporations
with their principal place of business in Atlanta, Georgia. As part of its business,
Premier partners with venues to present exhibitions about the Titanic. On June 13,
2011, Premier entered into an agreement with a Singapore promoter (who is not a
party to this lawsuit) to produce a Titanic exhibition in Singapore. Thomas Zaller,
a former Premier employee who was working as a consultant to the Singapore
promoter, helped the promoter negotiate the contract between it and Premier. Over
the course of his involvement, Zaller repeatedly demanded and was ultimately
given access to what Premier describes as “confidential and proprietary
information.” Before granting access to that information, however, Premier
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required the Singapore promoter to agree to certain confidentiality provisions.
The information that Premier gave Zaller and the promoter included “Computer-
Aided Design files, graphic and text files, photographs and videos, floor plans,
narratives, [and] designs for its signature works.”
Kingsmen is composed of Kingsmen Creatives (KC) and Kingsmen Exhibits
(KE), both of which are Singapore corporations with their principal place of
business in Singapore. The Kingsmen entities became involved in the production
of the Singapore Exhibition when the promoter hired KE to build a glass floor for
one of the rooms in it. That was Kingsmen’s only involvement in the Singapore
Exhibition. About a year later, on August 28, 2012, Zaller’s Singapore-based
company, Imagine Exhibitions (Imagine), entered into a contract with Kingsmen to
put on its own Titanic exhibition in Macau, China. Under the terms of the
agreement between Imagine and Kingsmen, Imagine provided Kingsmen with the
outline and concepts for the Macau Exhibition and Kingsmen helped to design,
construct, and install it.
In preparation for the Macau Exhibition, Kingsmen contracted with a Florida
company, Attractions and Entertainment Solutions (AES), to purchase a cold-to-
the-touch iceberg. There is a similar iceberg in Premier’s exhibitions. Kingsmen
was in Singapore when it negotiated the purchase of the iceberg from AES through
email and telephone conversations. In connection with that purchase, Kingsmen
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emailed to AES in Florida photographs and documents that it had received from
Zaller. Premier maintains that what Kingsmen sent was Premier’s “Design File”
and that Kingsmen did so knowing the design file contained “proprietary and
confidential intellectual property.” The iceberg was designed, processed, and
manufactured by AES in Jacksonville, Florida, and sent to Kingsmen in Singapore.
That is the only link between what Kingsmen did and Florida. All of the other
work Kingsmen did for the Macau Exhibition took place in Asia.
Premier’s complaint alleges that the Zaller/Kingsmen Exhibition was a
“striking copy” of Premier’s exhibition and that Zaller and Kingsmen used the
confidential, proprietary information Premier had given them to stage the
Singapore Exhibition. It also alleges that the iceberg Kingsmen purchased was an
“absolute copy of the iceberg utilized by [Premier] in the [Singapore Exhibition]
and numerous other Titanic exhibitions presented by [Premier] around the world.”
Premier further maintains that the iceberg is “a key component of the
Zaller/Kingsmen Exhibition and was able to be built only because [Kingsmen]
provided AES [with Premier’s] intellectual property that had been fraudulently
obtained by Zaller.” The Zaller/Kingsmen Exhibition opened in Macau, China in
October 2012 and operated through March 31, 2013.
These events spawned several lawsuits. First, on February 26, 2013,
Premier filed suit in the Northern District of Georgia against Zaller and his
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companies. On April 16, 2013, before filing a lawsuit against Kingsmen, Premier
made it a settlement offer. Anthony Chong, KE’s Managing Director, contacted
Samuel Weiser, the CEO of Premier, and asked for more time to consider the offer.
Weiser promised that Premier would not file a lawsuit until April 23, 2013, but it
was KE that struck first. On April 22, 2013, KE filed an action against Premier in
Singaporean court seeking a declaration that it had not violated Premier’s
intellectual property rights. Finally, on April 29, 2013, Premier filed the complaint
in the lawsuit that led to this appeal, asserting claims for (1) conversion, (2) unjust
enrichment, (3) trade dress infringement, (4) misappropriation of trade secrets, and
(5) civil conspiracy.
Kingsmen filed a motion to dismiss the complaint, based on lack of personal
jurisdiction, failure to state a claim, and forum non conveniens. In support of its
motion to dismiss, Kingsmen filed Chong’s declaration as well as several other
exhibits. Premier opposed the motion to dismiss and supported it with the
declaration of its CFO. Premier also filed a motion for limited jurisdictional
discovery and an evidentiary hearing. The district court granted Kingsmen’s
motion to dismiss on August 7, 2013, reasoning that it lacked personal jurisdiction
over Kingsmen under both Florida’s long arm statute and the Due Process Clause.
It also denied Premier’s requests for limited jurisdictional discovery and an
evidentiary hearing.
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II.
We review de novo a district court’s dismissal for lack of personal
jurisdiction, using a two-step inquiry. Internet Solutions Corp. v. Marshall, 557
F.3d 1293, 1295 (11th Cir. 2009). We first examine whether there is jurisdiction
under the state’s long arm statute and then examine whether the exercise of
jurisdiction over the defendant would violate due process. Id. “A plaintiff seeking
the exercise of personal jurisdiction over a nonresident defendant bears the initial
burden of alleging in the complaint sufficient facts to make out a prima facie case
of jurisdiction.” United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir.
2009). Where the defendant submits contradictory affidavit evidence to challenge
jurisdiction, the plaintiff must produce evidence supporting the existence of long
arm jurisdiction. Id.
“Discovery matters are committed to the discretion of the district court,” Lee
v. Etowah Cnty. Bd. of Educ., 963 F.2d 1416, 1420 (11th Cir. 1992), so we review
the district court’s denial of Premier’s request for jurisdictional discovery under an
abuse of discretion standard, see White v. Coca-Cola Co., 542 F.3d 848, 853 (11th
Cir. 2008).
III.
We first examine whether jurisdiction is proper under Florida’s long arm
statute. That statute provides in relevant part that a person who is not a citizen or
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resident of Florida is subject to the state’s jurisdiction for “any cause of action
arising from any” one of the following acts:
(1) Operating, conducting, engaging in, or carrying on a business or
business venture in this state . . . .
(2) Committing a tortious act within this state.
Fla. Stat. § 48.193(1)(a)(1)–(2). Premier argues that Kingsmen “engaged in a
business venture” by contracting with a Florida business to construct a mechanical
iceberg based on Premier’s stolen intellectual property. It also argues that
Kingsmen committed tortious acts –– conversion and civil conspiracy — in the
State of Florida that are sufficient to support the district court’s exercise of
personal jurisdiction under the long arm statute.1
A.
“In order to establish that a defendant is ‘carrying on business’ for the
purposes of [Florida’s] long-arm statute, the activities of the defendant must be
considered collectively and show a general course of business activity in the state
for pecuniary benefit.” Horizon Aggressive Growth, L.P. v. Rothstein-Kass, P.A.,
421 F.3d 1162, 1167 (11th Cir. 2005) (quotation marks omitted). That requirement
can be satisfied either by (1) “‘doing a series of similar acts for the purpose of
1
In its initial complaint, Premier raised a third basis for the exercise of long arm
jurisdiction –– “[c]ausing injury to persons or property within this state arising out of an act or
omission by the defendant outside this state.” Fla. Stat. § 48.193(6)(a). Premier has failed to
argue that basis on appeal, so it is abandoned. See United States v. Ardley, 242 F.3d 989, 990
(11th Cir. 2001) (“[I]ssues and contentions not timely raised in the briefs are deemed
abandoned.”).
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thereby realizing pecuniary benefit or’” (2) “‘doing a single act for such purpose
with the intention of thereby initiating a series of such acts.’” Wm. E. Strasser
Constr. Corp. v. Linn, 97 So. 2d 458, 460 (Fla. 1957) (quoting with approval the
Restatement (First) of Judgments § 22 (1942)) (emphasis omitted).
In Horizon Aggressive we listed several factors courts should consider in
determining whether a defendant engaged in a “general course of business
activity.” 421 F.3d at 1167. These include: (1) “the presence and operation of an
office in Florida”; (2) “the possession and maintenance of a license to do business
in Florida”; (3) “the number of Florida clients served”; and (4) “the percentage of
overall revenue gleaned from Florida clients.” Id. (citations omitted). Although
these factors are not dispositive, this Court and Florida courts have applied them to
preclude jurisdiction before. For example, in Horizon Aggressive, we held that
there was no jurisdiction because the defendant did not have any operations in
Florida, served only six Florida clients, and the revenues from those clients
amounted to less than five percent of its gross revenue. Id. at 1167. And in
Milberg Factors, Inc. v. Greenbaum, 585 So. 2d 1089, 1091 (Fla. 3d DCA 1991), a
Florida district court of appeal declined to exercise jurisdiction under the business
venture provision where the defendant did not maintain offices, employees, or
telephone listings in Florida, did not solicit business in Florida, and its only
business connections to Florida were five “isolated” factoring agreements over a
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ten-year period with Florida-based companies that amounted to less than two
percent of its total revenue.
In this case, the only contact between Florida-based AES and Singapore-
based Kingsmen was the negotiation and execution of a single contract for
Kingsmen’s purchase of the iceberg. Kingsmen does not have any agents or
employees in Florida, it does not maintain offices there, and it does not derive any
revenue from business transactions in Florida. The purchase of one item, standing
alone, is not sufficient to show a “general course of business activity,” as required
by Florida’s long arm statute.2
Premier attempts to enlarge what is a single transaction by breaking it down
into phases –– the “initial solicitation,” the “continued . . . negotiat[ion],”
“enter[ing] into a written agreement,” and tendering payment for the item. 3 The
evidence, construed in the light most favorable to Premier, shows that Kingsmen
spent slightly over a month contracting with AES through telephone and email for
2
It is true that the agreement between Kingsmen and AES also included a one-year
warranty and one year of telephone technical support, but nothing in the case law suggests that is
enough to elevate the deal to a “general course of business activity.” While AES’s service
commitments are continuing, they are ancillary relationships that stem from a single, isolated
purchase.
3
Premier also alleges that Kingsmen and AES executed their written agreement in
Florida. But the affidavit evidence suggests that the entire transaction, including the execution of
the contract, was done electronically. And Kingsmen asserts that none of its representatives
“ever set foot in Florida.” Because Premier has not presented evidence specifically refuting that
contention, we cannot accept as true its allegation in the complaint that the contract was executed
by Kingsmen in Florida. See Cable/Home Commc’n Corp., 902 F.2d 829, 855 (11th Cir. 1990).
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the construction of the iceberg. We have held that “telephonic and electronic
communications [made from elsewhere] into Florida” do not constitute carrying on
a business venture in Florida, even when those phone calls were incident to some
economic activity. Horizon Aggressive, 421 F.3d at 1167; see also Sculptchair,
Inc. v. Century Arts, Ltd., 94 F.3d 623, 628 (11th Cir. 1996) (holding that making
phone calls from Canada to Florida did not qualify as carrying on a business
venture in Florida). The fact that Kingsmen’s isolated purchase of one item from a
Florida company was accompanied by telephone and email communication does
not render it a “general course of business activity . . . for pecuniary benefit.” 4
Sculptchair, 94 F.3d at 628.
That is not to say that conducting a single transaction can never amount to
engaging in a “business venture” within the meaning of the statute. Florida courts
have recognized that a “‘business venture’ can consist of a single project or
4
We also note that the fact that Kingsmen purchased the iceberg from a Florida
company –– as opposed to selling an item to a Florida resident –– calls into question whether the
transaction was for Kingsmen’s “pecuniary benefit.” In Future Technology Today, Inc. v. OSF
Healthcare Systems, we considered whether a nonresident corporation that paid a Florida
company to service its computer information systems was “carrying on a business venture”
within the meaning of the long arm statute. 218 F.3d 1247 (11th Cir. 2000). We held that it was
not, in part because “the immediate pecuniary interest to the defendant was the expenditure in
excess of $800,000 paying for plaintiff’s services.” Id. at 1250. In other words, the defendant’s
act did not qualify as carrying on a business venture because it was not a “general course of
business activity in the State for pecuniary benefit.” Sculptchair, 94 F.3d at 627 (emphasis
added). The same could be said of Kingsmen’s purchase of the iceberg from AES. While the
iceberg might help Kingsmen make money in Macau and anywhere else it is exhibited,
Kingsmen did not, by buying it, seek to earn any money in Florida. Instead, it spent money
there.
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transaction.” Atlantis Marina & Yacht Club, Inc. v. R&R Holdings, Inc., 766 So.
2d 1163, 1165 (Fla. 3d DCA 2000) (finding the long arm statute’s “business
venture” requirement satisfied where company brought a $1.45 million yacht to
Florida, marketed it over a period of time, and eventually sold it in Florida). But
they have generally done so only where the transaction was substantial in scope
and could lead to additional economic activity in the state. See, e.g., Linn, 97 So.
2d at 460 (entering into a contract to construct an apartment building in Florida,
with the intent of renting that building to tenants, was a “business venture”
sufficient to support long arm jurisdiction); State ex rel. Weber v. Register, 67 So.
2d 619, 620–21 (Fla. 1953) (purchasing Florida orange grove and later listing it for
sale in Florida was a business venture sufficient to obtain substituted personal
service and establish jurisdiction); Labbee v. Harrington¸ 913 So. 2d 679, 683 (Fla.
3d DCA 2005) (finding the “business venture” requirement satisfied where the
defendant rented out property for 20 years and then sold it). Florida courts have
declined to exercise long arm jurisdiction where the transaction in question was
isolated and did not involve any continued activity. See Foster, Pepper & Riviera
v. Hansard, 611 So. 2d 581, 582–83 (Fla. 1st DCA 1992) (law firm’s preparation
of a private placement memorandum to facilitate a limited partnership offering was
not a general course of business activity sufficient to invoke long arm jurisdiction);
Hayes v. Greenwald, 149 So. 2d 586, 587 (Fla. 3d DCA 1963) (holding that “[t]he
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isolated action of selling a home, by one who moves to another state, does not
amount to a business venture” for purposes of the substituted services statute and
therefore jurisdiction was lacking).
Kingsmen’s conduct in this case was isolated and did not involve continuous
commercial activity. It does not fall into the same category as the decisions where
a single transaction was held to establish long arm jurisdiction. Those cases dealt
with defendants who were attempting to generate money in the State of Florida
while simultaneously resisting the state’s jurisdiction over their activities. See
Atlantis Marina, 766 So. 2d at 1165; Linn, 97 So. 2d at 460; Weber, 67 So. 2d at
620–21; Labbee, 913 So. 2d at 683. By contrast, Kingsmen does not make any
money in Florida. The economic activity on the part of the defendants in those
cases was also more extensive and more connected to the State of Florida than
Kingsmen’s activities here. For example, in Linn, the defendant executed a
contract for the construction of an apartment building which it planned to rent out
to generate revenue. 97 So. 2d at 460. And in Atlantis Marina, upon which
Premier relies, the defendant brought an expensive yacht to Florida, listed it with a
Florida broker, placed it in a Florida boat show, docked it in Florida, showed it to
prospective buyers on three separate occasions, and ultimately executed the sales
contract and closing in Florida. 766 So. 2d at 1164–65. Kingsmen’s conduct in
this case –– sending specifications and negotiating by email and telephone –– does
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not create those kind of significant contacts with Florida. For these reasons,
jurisdiction does not exist under the Florida long arm statute’s doing business
provision.5
B.
The long arm statute also provides jurisdiction over any cause of action that
“aris[es] from” the commission of a tort in Florida. Fla. Stat. § 48.193(1)(a)(2). A
person can commit a tort under § 48.193 by making “telephonic, electronic, or
written communications into Florida,” but for jurisdiction to exist, “the cause of
action must arise from the communications.” Wendt v. Horowitz, 822 So. 2d
1252, 1260 (Fla. 2002). Premier bases its jurisdictional claim on two alleged torts:
conversion and civil conspiracy.
1.
Under Florida law, the tort of conversion is defined as “an act of dominion
wrongfully asserted over another’s property inconsistent with his ownership
therein.” United Techs. Corp., 556 F.3d at 1270 (quotation marks omitted). “[T]o
state a claim for conversion, one must allege facts sufficient to show ownership of
the subject property and facts that the other party wrongfully asserted dominion
over that property.” Edwards v. Landsman, 51 So. 3d 1208, 1213 (Fla. 4th DCA
5
Linn, Weber, Labbee, and Hayes all address the existence of a “business venture” in the
context of a closely related jurisdictional statute, Fla. Stat. § 48.181, which provides for
substituted service of process (on the Florida Secretary of State) for nonresidents engaging in
business in the state. The language of that statute and the one in this case are identical in all
material respects, so the decisions construing that statute’s requirements are relevant here.
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2011). In this case the only conceivable conversion that occurred in Florida
stemmed from Kingsmen’s transmitting to AES the information necessary to build
a replica of Premier’s mechanical iceberg.6 Assuming that the communication of
that information amounted to conversion, Premier must still show that its “cause of
action . . . ar[o]se from the communication[].” Wendt, 822 So. 2d at 1260. That
requirement is known as “connexity” and it comes from the language of the long
arm statute. See Fla. Stat. § 48.193 (providing jurisdiction for “any cause of action
arising from” the enumerated acts). The problem the connexity requirement poses
for Premier’s jurisdictional bid lies in the fact that Premier’s conversion claim, as it
is framed in the complaint, encompasses much more than the iceberg replica. The
claim is based on Zaller and Kingsmen’s entire copycat exhibition, and most of the
tortious activities it alleges occurred in Singapore, not Florida.
Where the alleged tort is based on an out-of-state defendant’s
communications into Florida, there must be some connexity “between the out-of-
state communications and the cause of action such that the cause of action ‘would
depend upon proof of either the existence or the content of any of the
communications . . . into Florida.’” Horizon Aggressive, 421 F.3d at 1168
(quoting Carlyle v. Palm Beach Polo Holdings, Inc., 842 So. 2d 1013, 1017 (Fla.
6
Viewed in the light most favorable to Premier, the record shows that Premier provided
Zaller and the promoter with access to its confidential information and intellectual property and
that Zaller sent that information to Kingsmen. Kingsmen then transmitted to AES in Florida a
copy of Premier’s “design file,” which contained proprietary and confidential intellectual
property about how to construct the iceberg.
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4th DCA 2003)); see also Williams Electric Co. v. Honeywell, Inc., 854 F.2d 389,
394 (11th Cir. 1988) (“For personal jurisdiction to attach under the ‘tortious
activity’ provision of the Florida long-arm statute, the plaintiff must demonstrate
that the non-resident defendant ‘committed a substantial aspect of the alleged tort
in Florida.’”) (quoting Watts v. Haun, 393 So. 2d 54, 56 (Fla. 2d DCA 1981)). In
other words, “the activities in Florida [must be] essential to the success of the tort.”
Williams Electric, 854 F.2d at 394 (quotation marks omitted).
Close examination of Premier’s complaint reveals that the conversion for
which Premier seeks damages goes well beyond the single act of sending to AES
the design for an iceberg. For example, in its complaint Premier alleges that the
“Zaller/Kingsmen Exhibition is a striking copy of the [Premier] Exhibition,” and
that, “[i]n laying out their exhibition, [Kingsmen] cut and pasted most of the
[Premier] Exhibition floor plan into their own.” The complaint specifically states
that the intellectual property Zaller and Kingsmen “wrongfully adopted, used and
converted” included the Premier Exhibition’s:
unique floor plan and layout, artifact arrangements, lighting
placement, customer interactive experiences (including the passenger
tickets provided to each customer upon entering the exhibition, and
the cold to the touch iceberg exhibit), print text narrative contents and
locations, room re-creations (including . . . each room’s details [such
as] architecture, color scheme, placement, and decoration, photograph
opportunities, etc.), photograph content and locations, and much
more.
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As Premier describes it, Zaller and Kingsmen copied a great deal of the Premier
Exhibition’s material, “including but not limited to design elements, room re-
creations, signature works, photographs, and narratives, in order to create and
operate a competing exhibition.” There is little doubt that those allegations state a
claim for conversion, but the vast majority of the alleged conduct occurred in
Singapore. The allegations of the complaint establish that Premier’s cause of
action for conversion arises not so much from Kingsmen’s dealings with AES to
produce a copy of the iceberg as from its efforts to recreate the entire exhibition, of
which the iceberg is just one part.
Although the complaint alleges that the “iceberg, and the room in which the
iceberg is housed in [Premier’s] Titanic exhibitions, constitute signature works” of
the exhibition, the iceberg is not the focus of Premier’s conversion claim.
Premier asserts that Kingsmen sought to duplicate not only the iceberg but also
“virtually every other key component” of the exhibition for its own use. And the
complaint parenthetically lists the iceberg as just one example of the larger group
of “customer interactive experiences” that were allegedly copied. In light of the
breadth of Premier’s conversion claim, it does not “depend upon proof of either the
existence or the content of any of the communications . . . into Florida,” Horizon
Aggressive, 421 F.3d at 1168 (alteration in original) (quotation marks omitted),
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and the transmittal of the iceberg information is not a “substantial aspect” of the
entire tort alleged, Williams Electric, 854 F.2d at 394.
When construing the connexity requirement, Florida courts have upheld
jurisdiction only where the communications themselves constituted the tort for
which the plaintiff sought recovery. Thus, Florida courts have found jurisdiction
where the communications at issue were alleged to be defamatory, see Achievers
Unlimited, Inc. v. Nutri Herb, Inc., 710 So. 2d 716 (Fla. 4th DCA 1998),
fraudulent, see Deloitte & Touche v. Gencor Indus., Inc., 929 So. 2d 678 (Fla. 5th
DCA 2006), or where they amounted to negligent legal advice, see Wendt, 822 So.
2d at 1258–60 (holding that sending negligent legal work into Florida could give
rise to personal jurisdiction but declining to decide whether it did in that case).
That is not the situation here. Premier claims, rightly or wrongly, that Kingsmen
and Zaller copied nearly every facet of its operation, but does not claim that
occurred in Florida. Premier’s entire claim of conversion did not “arise from the
communications” about the iceberg that Kingsmen sent to AES. Wendt, 822 So.
2d at 1260.
It may be true, as counsel for Premier contended at oral argument, that there
were multiple instances of conversion, and that one such instance –– the
conversion of propriety information about the iceberg –– took place in Florida.
That one conversion is not, however, the tort that Premier alleged in its complaint.
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Premier could have drawn its complaint to limit the conversion claim to the iceberg
and communications concerning it. Instead, it alleged a conversion claim centered
on events that occurred almost entirely in Asia and sought to bring the whole claim
into the courts of the United States based on the only link the claim has to Florida.
This Court’s precedent dictates that personal jurisdiction over one individual
claim cannot be expanded to cover other related claims unless the claims “arose
from the same jurisdiction generating event.” Cronin v. Wash. Nat’l Ins. Co., 980
F.2d 663, 671 (11th Cir. 1993). The jurisdiction generating event here was
Kingsmen’s transmittal to AES of the confidential iceberg information. But that
act did not give rise to the many other ways in which Premier alleged that
Kingsmen and Zaller committed the act of conversion. It did not, for example,
give rise to the Zaller/Kingsmen Exhibition’s display and use of Premier’s “room
re-creations, photographs, narratives, poster boards and writings.” To the extent
we would have jurisdiction over the claim that Kingsmen converted the iceberg
design, that jurisdiction cannot be stretched to cover the full extent of the
conversion Premier has alleged.
For these reasons, we agree with the district court that the “ice-berg purchase
and the communication between Defendants and AES [were] merely incidental to
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Plaintiffs’ claims.” The transmittal of the information about the iceberg is not the
primary act on which Premier bases its conversion cause of action. 7
2.
Premier also attempts to establish jurisdiction under the long arm statute’s
tortious activity prong by arguing that “at least one act in furtherance of a civil
conspiracy” –– Kingsmen’s transmittal of misappropriated information to AES to
build the iceberg –– took place in Florida. This argument fails because Premier
has not carried its burden of showing that personal jurisdiction over Kingsmen is
proper on the basis of the purported civil conspiracy. See Murphy v. St. Paul Fire
& Marine Ins. Co., 314 F.2d 30, 31 (5th Cir. 1963) (“It is elementary that the
burden is on the appellants to show error.”); 8 cf. Sculptchair, 94 F.3d at 627
(“Under Florida law, the plaintiff bears the burden of proving personal jurisdiction
. . . .”). To establish a claim of civil conspiracy, a plaintiff must show (1) an
agreement between two or more parties, (2) to do an unlawful act, (3) an overt act
in furtherance of the conspiracy, and (4) damage to the plaintiff as a result of the
act performed in furtherance of it. Walters v. Blankenship, 931 So. 2d 137, 140
(Fla. 5th DCA 2006). But in its brief to this Court Premier asserts only that
7
As additional evidence that the iceberg was merely incidental to Premier’s conversion
claim, Kingsmen points out that the complaint Premier filed in its Georgia lawsuit against Zaller
and his companies does not even mention Kingsmen and makes only passing references to the
iceberg.
8
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
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“[a]ppellees committed in Florida an act in furtherance of their conspiracy to
misuse the converted property” by “transferring misappropriated property into
Florida for use in creating their competing exhibition.” It is not even clear from
Premier’s brief who the other party to the conspiracy is supposed to be. Premier’s
cursory assertions in its brief to this Court may not amount to abandonment of the
claim, see Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1278 (11th Cir. 2009), but they
are not enough to convince this Court that a conspiracy existed, much less that the
district court erred in dismissing the claim for lack of personal jurisdiction.
Even if Premier had established the existence of a conspiracy, it would not
satisfy the long arm statute’s tortious activity provision because the conspiracy did
not arise from Kingsmen’s communications to AES in Florida. AES is a non-party
against whom Premier has made no allegation of wrongdoing. And the decision on
which Premier relies for the proposition that a conspirator committing an overt act
in Florida is sufficient to invoke personal jurisdiction is an unpublished district
court decision that involved a defendant outside of Florida who committed tortious
acts against a Florida-based plaintiff that resulted in an injury in Florida. See
Energy Source, Inc. v. Gleeko Properties, LLC, No. 1:10–civ–21162, 2011 WL
3236047 (S.D. Fla. July 28, 2011); see also Machtinger v. Inertial Airline Servs.,
Inc., 937 So. 2d 730, 734–35 (Fla. 3d DCA 2006) (upholding jurisdiction over a
nonresident defendant and his coconspirators on the basis of that defendant’s
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“fraudulent misrepresentations made from outside Florida” but sent to the
plaintiff’s Florida headquarters because the plaintiff’s “cause of action for fraud
ar[o]se out of [the defendant’s] fraudulent misrepresentations that he directed into
Florida”); Execu-Tech Business Systems, Inc. v. New Oji Paper Co. Ltd., 752 So.
2d 582, 585 (Fla. 2000) (finding jurisdiction over New Oji and other paper
companies who conspired to fix the price of thermal fax paper in Florida and
throughout the United States because, by price-fixing in Florida, the conspirators
committed a tortious act on Floridian soil). In each of the cited cases, the
defendant committed a tort in Florida against a Florida resident, and the tort
committed in Florida was also the principal object of the conspiracy. That is not
the situation here.
In this case, the only alleged tortious act in Florida was the communication
of information between a conspirator in Singapore and someone in Florida who is
not alleged to be a conspirator. Not only that, but the complaint alleges that the
civil conspiracy encompassed Zaller and Kingsmen’s plan to “misappropriate,
reproduce, and convert [Premier’s] intellectual property” and then to use that
property to “design, create, stage, and market [their] [e]xhibition, all to [Premier’s]
detriment.” The allegations do not establish that the civil conspiracy cause of
action “arise[s] from the communications,” Wendt, 822 So. 2d at 1260, that
Kingsmen sent to AES because those communications were not “essential to the
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success of the tort,” Williams Elec. Co., 854 F.2d at 394 (quotation marks
omitted). Like the conversion claim, the conspiracy cause of action does not
“depend upon proof of either the existence or the content of any of the
communications . . . into Florida.” Horizon Aggressive, 421 F.3d at 1168
(quotation marks omitted).
Because we conclude that there is no jurisdiction under Florida’s long arm
statute, we need not analyze whether the exercise of jurisdiction would comport
with due process. See Internet Solutions, 557 F.3d at 1295. To quote the district
court’s aptly stated conclusion, Premier’s lawsuit “cannot complete its maiden
voyage because it is unable to successfully navigate the treacherous ice field of
personal jurisdiction.”
IV.
Having concluded that the district court properly found that it did not have
jurisdiction, we now turn to Premier’s argument that it was entitled to limited
jurisdictional discovery before the district court dismissed the case. Federal courts
clearly have the power to order jurisdictional discovery, and we have held that the
exercise of that power “is not entirely discretionary.” Eaton v. Dorchester Dev.,
Inc., 692 F.2d 727, 729 (11th Cir. 1982). Our case law suggests that federal courts
should order limited jurisdictional discovery where the information the plaintiff
seeks, if it exists, would give rise to jurisdiction. As we explained in Chudasama
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v. Mazda Motor Corp., “[r]esolution of a pretrial motion that turns on findings of
fact –– for example, a motion to dismiss for lack of personal jurisdiction pursuant
to Fed. R. Civ. P. 12(b)(2) –– may require some limited discovery before a
meaningful ruling can be made.” 123 F.3d 1353, 1367 (11th Cir. 1997). Compare
Eaton, 692 F.2d at 730–31 (reversing the district court’s dismissal for lack of
jurisdiction where, among other things, the information the plaintiff sought could
have given rise to jurisdiction) with Posner v. Essex Ins. Co., 178 F.3d 1209, 1214
n.7 (11th Cir. 1999) (affirming the district court’s dismissal of the case without
jurisdictional discovery where the plaintiffs failed to specify what they sought to
discover). The resolution of the jurisdictional question in this case does not require
any additional findings of fact.
While Premier did identify certain areas in which it wanted more discovery
–– namely, the dealings between AES and Kingsmen –– it had already received
information from AES, and Kingsmen itself admitted that it had given AES the
specifications it received from Zaller in connection with the iceberg transaction.
More importantly, there is no indication that the receipt of additional information
about this one transaction would demonstrate the existence of jurisdiction. As for
long arm jurisdiction under the “business venture” provision of § 48.193,
additional details about the phone calls and emails between AES and Kingsmen
would not undermine the conclusion that the purchase of one item from AES does
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not amount to a “general course of business activity in the state for pecuniary
benefit.” Horizon Aggressive, 421 F.3d at 1167 (quotation marks omitted). As for
jurisdiction under the “tortious conduct” provision, even the most incriminating
evidence about Kingsmen’s dealings with AES would not make Premier’s cause of
action arise from that conversion, for the reasons already explained.
Because the facts Premier sought would not have affected the district court’s
jurisdiction, it was not an abuse of discretion for the district court to deny the
motion for jurisdictional discovery. See Chudasama, 123 F.3d at 1367–68
(discussing the burdens that unnecessary discovery imposes on the parties and the
judiciary and concluding, in the context of a 12(b)(6) motion, that the district court
abused its discretion by allowing discovery where discovery was not necessary to
decide the motion). Although a motion to dismiss for lack of personal jurisdiction
may in some cases require limited jurisdictional discovery, that is only true if the
resolution of that motion “turns on findings of fact.” Id. at 1367. Because this one
does not, it was not an abuse of discretion for the district court to deny Premier’s
motion for jurisdictional discovery.
V.
The judgment of the district court is AFFIRMED.
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