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Gencor Industries, Inc v. Fort Myer Construction

February 23, 2012

GENCOR INDUSTRIES, INC., PLAINTIFF,
v.
FORT MYER CONSTRUCTION CORPORATION, DEFENDANT.



ORDER

This cause comes before the Court on a motion to dismiss (Doc. 12) filed by Defendant Fort Myer Construction Corp. ("FMCC"); a response (Doc. 20) filed by Plaintiff Gencor Industries, Inc. ("Gencor"); and Defendant's reply (Doc. 25).

I. Overview

Gencor is a Delaware corporation located in Orlando, Florida, that manufactures "asphalt manufacturing plants" and other equipment used in the road and highway construction industry. FMCC is a Virginia corporation located in Washington, D.C., that operates an asphalt manufacturing plant. As relevant to the instant motion, the parties entered into several contracts from May 2008 through August 2010 under which FMCC agreed to purchase from Gencor an asphalt manufacturing plant and various additional parts related to asphalt production.*fn1 According to FMCC, there were "significant problems" with the plant, ultimately resulting in a "catastrophic failure." After experiencing these issues, FMCC failed to meet its remaining obligations to Gencor under the Plant Contract and Parts Contracts.

On October 28, 2011, Gencor filed the instant lawsuit asserting four Counts for breach of contract (Count I), open account (Count II), account stated (Count III), and "action for goods sold and delivered" pursuant to Fla. Stat. § 672.709(1)(a) (Count IV). FMCC now moves to dismiss the Complaint for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2), or in the alternative, to transfer venue pursuant to 28 U.S.C. § 1404(a).

II. Background

It is undisputed that FMCC is a Virginia corporation, with its principle place of business in Washington, D.C. It does not maintain an office in Florida, does not solicit business in Florida, does not have a registered agent for service of process in Florida, does not own any property in Florida, does not maintain a bank account in Florida, and has never performed any work in Florida. (Doc. 12 at 4).

The relevant relationship between the parties began at an industry trade show in Las Vegas sometime in 2008.*fn2 After that initial meeting, FMCC entered into negotiations with Gencor for the "provision of an asphalt plant to be delivered and installed on [FMCC] property in the District of Columbia." (Doc. 12 at 4). Negotiations took several weeks, but occurred wholly in Washington, D.C., (Doc. 12 at 5), except that Gencor's president had "some involvement" in the negotiations by phone in his Orlando office. (Doc. 20 at 2). On May 9, 2008, the Plant Contract was "accepted by [FMCC] in the District of Columbia," (Doc. 12 at 5), but "executed" in Orlando. (Doc. 20 at 2).*fn3 Further, it contains a choice of law clause which states that "this instrument and all questions regarding the performance of the parties hereunder shall be controlled by the laws of the State of Florida," and the payment was to be made "in Orlando." (Doc. 1-2 at 21, ¶ 19).

All the parts and equipment for the Plant Contract were manufactured in Orlando, but were "installed"*fn4 at FMCC's facility in Washington, D.C. (Doc. 20 at 3). Because of the complex logistical concerns, the parties had several phone conversations from their respective offices regarding the delivery and installation of the plant. (Doc. 20 at 2). Additionally, during the negotiation of the Plant Contract, two FMCC employees traveled to Orlando to attend a "training school" operated by Gencor,*fn5 and an FMCC officer visited the Orlando office in March 2009 for an "open house." (Doc. 20 at 3; Doc. 25 at 2-3).

After installation of the plant was completed, the parties entered into several other agreements for parts related to the asphalt plant (the Parts Contracts). Each of the Parts Contracts contained a Florida choice of law clause and a provision requiring that payment be made "in Orlando." (Doc. 20 at 3). One of these contracts, (the "Ultrafoam Contract")*fn6 included a forum selection clause which states that "jurisdiction of any dispute shall be in Orange County, Florida." (Doc. 21 at 13, ¶ 13). Finally, the invoices provided that the goods were sold "F.O.B. factory or source." (Doc. 20 at 3).

III. Standard

A. Personal Jurisdiction

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. Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1214 (11th Cir.1999); see also Polski Linie Oceaniczne v. Seasafe Transp. A/S, 795 F.2d 968, 972 (11th Cir.1986) (describing procedure for plaintiff to establish personal jurisdiction under Florida's long-arm statute). Where a defendant challenges jurisdiction by submitting affidavits in support of its position, "the burden traditionally shifts back to the plaintiff to produce evidence supporting jurisdiction." Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002); Posner, 178 F.3d at 1214; see also Polski Linie Oceaniczne, 795 F.2d at 972. Where the plaintiff s complaint and supporting evidence conflict with the defendant's affidavits, the court must construe all reasonable inferences in favor of the plaintiff. Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990).

To exercise personal jurisdiction over a defendant, the Court must determine whether the exercise of jurisdiction is: (1) specific or general; (2) appropriate under the state's long-arm statute; and (3) comports with the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984); Stubbs v. Wyndham Nassau Resorts & Crystal Palace Casino, 447 F.3d 1357, 1360 (11th Cir. 2006); Horizon Aggressive Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162, 1166 (11th Cir. 2005); see also Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989).

Specific jurisdiction is founded on a defendant's activities in the forum that are related to or arise out of the cause of action alleged in the complaint. Stubbs, 447 F.3d at 1360 n. 3 (citing Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1292 (11th Cir. 2000)). If a defendant is subject to specific jurisdiction on one claim but not another, the Court may, in certain circumstances, exercise personal jurisdiction over the defendant as to both claims. 4A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE ยง 1069.7 (3d ed. Supp. 2009). General jurisdiction arises from the defendant's contacts with the forum that are not directly related to the cause of action being litigated. Stubbs, 447 ...


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