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Ramirez v. Group Services, Inc.

United States District Court, M.D. Florida, Orlando Division

June 20, 2017

JORGE RAMIREZ, Plaintiff,
v.
GROUP SERVICES, INC., Defendant.

          ORDER

          ROY B. DALTON UNITED STATES DISTRICT JUDGE

         This cause is before the Court on consideration of: (1) Defendant's Special Appearance to File Motion to Dismiss for Lack of Personal Jurisdiction, for Failure to State a Claim for Which Relief Can Be Granted and for Improper Venue (Doc. 26), filed March 21, 2017; and (2) Plaintiff's Opposition to Defendant's Motion to Dismiss First Amended Complaint for Lack of Personal Jurisdiction, for Failure to State a Claim for Which Relief Can Be Granted, and for Improper Venue (Doc. 29), filed April 7, 2017.

         I. Background

         On October 20, 2016, photographer Jorge Ramirez initiated this copyright infringement action against Defendant Group Services, Inc. concerning Defendant's alleged unauthorized use of nine photographic works (“Photographs”), authored by Plaintiff and registered in the U.S. Copyright and Trademark Office (“Copyright Office”). (See Doc. 24, ¶¶ 11, 19-22; Doc. 29-1, ¶¶ 6-8; Doc. 30.) Attached to the operative Amended Complaint are copies of the Photographs and copyright registrations (“Registrations”).[1] (See Doc. 24, ¶ 11; Docs. 24-1, 24-2.)

         In his Amended Complaint, Plaintiff alleges that Defendant “reproduced, distributed, displayed, published, and otherwise used” the Photographs on the Internet through its social media pages and its two websites: (1) www.gsipuertorico.com (“GSI Website”); and (2) www.gsipuertoricotours.com (“Tour Website”). (See Doc. 24, ¶¶ 4, 15-19.) Arguing that its presence on the Internet provides “insufficient contacts” with Florida to establish personal jurisdiction, Defendant moved to dismiss the Amended Complaint. (See Doc. 26 (“MTD”).) Plaintiff responded (Doc. 29 (“Response”)), Defendant replied (Doc. 42), and Plaintiff filed a sur-reply (Doc. 46). The Court held a hearing on the matter at 1:30 p.m. on May 16, 2017 (Doc. 43), and the matter is now ripe for adjudication.

         II. Legal Standards

         Complaints filed in this Court must contain “a short and plain statement of the grounds for the court's jurisdiction.” Fed.R.Civ.P. 8(a)(1). For personal jurisdiction, plaintiff must allege a prima facie case, which requires: (1) a basis for jurisdiction under Florida's Long-Arm Statute (“FLAS”), Florida Statutes, § 48.193; and (2) contacts with Florida that are sufficient to satisfy the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution (“DP Clause”). See Mut. Serv. Ins. Co. v. Frit Indus., Inc., 358 F.3d 1312, 1319 (11th Cir. 2004); see also Venetian Salami Co. v. Parthenais, 554 So.2d 499, 500-02 (Fla. 1989).

         Under FLAS, a party subjects itself to the specific jurisdiction of Florida courts “for any cause of action arising from” certain enumerated acts, if the acts are done by the party “personally or through an agent.”[2] See Fla. Stat. § 48.193(1)(a). The enumerated acts include:

         (1) [c]ommitting a tortious act in Florida [id. § 48.193(1)(a)(2)] . . . . [and]

         (2) [c]ausing injury to persons or property within [Florida] arising out of an act or omission by the defendant outside this state, if, at or about the time of the injury, either:

(a) the defendant was engaged in solicitation or service activities within [Florida]; or
(b) [p]roducts, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within [Florida] in the ordinary course of commerce, trade, or use [ id. § 48.193(1)(a)(6)].

         Specific personal jurisdiction under FLAS “concerns a nonresident defendant's contacts with Florida only as those contacts are related to the plaintiff's cause of action.” See Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1352 (11th Cir. 2013). For purposes of specific jurisdiction, the DP Clause is met when: (1) the plaintiff's claim “arise[s] out of or relate[s] to” the defendant's contacts with the forum; (2) the defendant “purposefully availed itself of the privilege of conducting activities” in Florida; and (3) “the exercise of personal jurisdiction comports with ‘traditional notions of fair play and substantial justice.'” See id. at 1355 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)).

         When a plaintiff fails to include sufficient allegations in his complaint to establish a prima facie case of personal jurisdiction, a defendant may assert a facial challenge to the complaint under Federal Rule of Civil Procedure 12(b)(2). See Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1268-69 (11th Cir. 2002); Island Stone Int'l Ltd. v. Island Stone India Private Ltd., No. 6:16-cv-656-Orl-40KRS, 2017 WL 1437464, at *5 (M.D. Fla. Apr. 4, 2017). A defendant also may assert a factual challenge under Rule 12(b)(2) by filing non-conclusory declarations challenging the jurisdictional allegations and showing that personal jurisdiction is absent. See Meier, 288 F.3d at 1268-69; see also Thomas v. Brown, 504 F. App'x 845, 847 (11th Cir. 2013). If the declarations sufficiently refute the personal jurisdiction allegations, then the burden shifts back to the plaintiff to establish his prima facie case with evidence sufficient to “withstand a motion for directed verdict.” See Madara v. Hall, 916 F.2d 1510, ...


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