United States District Court, M.D. Florida, Fort Myers Division
DOLLAR RENT A CAR, INC., an Oklahoma corporation, THRIFTY RENT-A-CAR SYSTEM, INC., an Oklahoma corporation, and THE HERTZ CORPORATION, a Delaware Corporation, Plaintiffs,
WESTOVER CAR RENTAL, LLC, a Delaware limited liability company, PHILIP R. MOOAR, CARL P. PALADINO, JOEL CASTLEVETERE, ENRICO D'ABATE, and MICHAEL G. DILLON, Defendants.
OPINION AND ORDER
E. STEELE UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendants' Motion to
Dismiss Plaintiffs' Second Amended Complaint for Lack of
Personal Jurisdiction and Alternative Motion to Transfer
Venue (Doc. #59) filed on June 6, 2017. Plaintiffs filed a
Response in Opposition (Doc. #60) on June 20, 2017, and
Defendants filed a Reply (Doc. #63) on June 30, 2017. For the
reasons set forth below, Defendants' Motion to Dismiss is
granted without prejudice.
case arises out of a terminated franchise relationship in the
rental car industry. Plaintiffs Dollar Rent a Car, Inc.
(Dollar), Thrifty Rent-a-Car System, Inc. (Thrifty), and The
Hertz Corporation (Hertz) filed a six-count Second Amended
Complaint (Doc. #58) against Westover Car Rental, LLC
(Westover) and Westover's five individual owners, Philip
R. Mooar, Carl P. Paladino, Joel Castlevetere, Enrico
D'Abate, and Michael G. Dillon (collectively, the
Individual Defendants). The first five counts allege breach
of various agreements by various defendants, while the sixth
count seeks a declaratory judgment as to Defendants'
post-termination obligations not to compete. The agreements
at issue are: (1) Westover's March 21, 2006 License
Agreements with Dollar (Doc. #58-1) and Thrifty (Doc. #58-4)
and a December 20, 2006 Amendment to those Agreements (Doc.
#58-2) (collectively, the License Agreements); (2) an April
30, 2010 Revised Personal Guaranty Agreement (the Personal
Guaranty) that the Individual Defendants executed with Dollar
(Doc. #58-3); and (3) a July 31, 2015 Vehicle Purchase
Participation Agreement (the VPPA) between Westover and Hertz
matter jurisdiction is premised on diversity of
citizenship. With respect to personal jurisdiction, the
Second Amended Complaint avers that Westover and each
Individual Defendant contractually consented to jurisdiction
in Florida. As to Westover only, the Complaint also alleges
that the Court has specific personal jurisdiction pursuant to
two provisions in Florida's long-arm statute, Fla. Stat.
move to dismiss the Second Amended Complaint on the ground
that the Court lacks personal jurisdiction over Westover and
each Individual Defendant. Alternatively, Defendants request
the case be transferred to the Buffalo Division of the United
States District Court for the Western District of New York.
Plaintiffs oppose both dismissal and transfer but believe any
transfer should be to Tulsa, Oklahoma.
jurisdictional basics are well established. To hear a case, a
federal court must have jurisdiction over both the subject
matter of the action and the parties to the action.
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584,
(1999). Absent either, “the court is powerless to
proceed to an adjudication.” Id.
federal court sitting in diversity may exercise personal
jurisdiction over an out-of-state defendant if (1) personal
jurisdiction is authorized under the forum state's
long-arm statute and (2) the exercise of such jurisdiction
comports with constitutional due process. Carmouche v.
Tamborlee Mgmt., Inc., 789 F.3d 1201, 1203 (11th Cir.
2015); Licciardello v. Lovelady, 544 F.3d 1280, 1283
(11th Cir. 2008). “The Florida long-arm statute
provides two bases for the exercise of personal jurisdiction:
specific and general jurisdiction.” PVC Windoors,
Inc. v. Babbitbay Beach Const., N.V., 598 F.3d 802, 808
(11th Cir. 2010). “[G]eneral jurisdiction refers to the
power of the forum state to exercise jurisdiction in any
cause of action involving a particular defendant, regardless
of where the cause of action arose, ” id. at
808 n.8, and is rooted in the fact that a defendant has
“engaged in substantial and not isolated activity
within [Florida].” Fla. Stat. § 48.193(2).
Specific jurisdiction, in contrast, refers to
“jurisdiction over causes of action arising from or
related to a defendant's actions within the forum.”
PVC Windoors, 598 F.3d at 808; see
generally Fla. Stat. § 48.193(1).
subject matter jurisdiction, “the requirement that a
court have personal jurisdiction may be intentionally waived,
or for various reasons a defendant may be estopped from
raising the issue.” Ins. Corp. of Ireland v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 703, 704
(1982). That is, a party may impliedly or expressly consent
to a particular court's exercise of jurisdiction,
irrespective of whether personal jurisdiction would otherwise
be authorized under the applicable long-arm statute and
satisfy due process. Id. at 703; see also
Ruhrgas, 526 U.S. at 584; Alexander Proudfoot Co.
World Headquarters v. Thayer, 877 F.2d 912, 919-21 (11th
plaintiff suing a nonresident defendant bears both the
initial burden of alleging a prima facie case of personal
jurisdiction and, if that jurisdiction is challenged, the
ultimate burden of establishing that its exercise is proper.
Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d
1339, 1350 (11th Cir. 2013); Oldfield v. Pueblo De Bahia
Lora, S.A., 558 F.3d 1210, 1217 (11th Cir. 2009). If the
defendant raises more than mere “conclusory
assertions” that personal jurisdiction is lacking,
plaintiff must then “produc[e] evidence supporting
jurisdiction.” Mosseri, 736 F.3d at 1350;
see also Posner v. Essex Ins. Co., 178 F.3d 1209,
1215 (11th Cir. 1999).
Second Amended Complaint avers that the Court has personal
jurisdiction over Westover and the Individual Defendants
because all have contractually consented to - and waived the
right to challenge - personal jurisdiction in Florida. (Doc.
#58, ¶¶ 17-18.) The Complaint asserts that personal
jurisdiction exists as to Westover for the additional reason
that Westover “has engaged in actions . . . that
constitute sufficient contacts with the State of
Florida.” (Id. ¶ 17.) Defendants
disagree that they have contractually consented to personal
jurisdiction in Florida. Defendants have also filed
affidavits disputing the contention that the Court has
specific jurisdiction over Westover pursuant to Florida's
principles dictate that when, as here, a federal
court sitting in diversity is asked to enforce a contractual
jurisdiction clause, the court must assess whether such a
clause is enforceable under the forum state's law.
Alexander Proudfoot, 877 F.2d at 919. However, as
with any challenge to personal jurisdiction, the district
court first “must determine ‘whether the
allegations of the complaint state a cause of
action.'” PVC Windoors, Inc. v. Babbitbay Beach
Const., N.V., 598 F.3d 802, 808 (11th Cir. 2010)
(quoting Wendt v. Horowitz, 822 So.2d 1252, 1260
(Fla. 2002)); see also Taylor v. Moskow, --- Fed.
App'x ---, 2017 WL 4899742, at *2 (11th Cir. Oct. 31,
2017) (per curiam) (affirming the district court's
finding that because the complaint “failed to state a
claim for conspiracy, that count was beyond the reach of
Florida's long-arm statute”). The Court thus begins
Pleading Sufficiency of the Second Amended Complaint
Breach of License Agreements and Personal Guaranty (Counts I,
II, & V)
I, II, and V allege breaches of the License Agreements and
Personal Guaranty. Count I is based on Westover's alleged
breach of its obligation to pay Dollar/Thrifty sums due under
the License Agreements. Counts II and V allege that the
Individual Defendants breached the Personal Guaranty by,
respectively, refusing compensate Dollar/Thrifty for the
damages suffered as a result of Westover's breaches of
the License Agreements, and failing to provide Plaintiffs
with timely notice that Westover was terminating the License
Florida law, “[t]he elements of a breach of contract
action are (1) a valid contract; (2) a material breach; and
(3) damages.” Beck v. Lazard Freres & Co.,
LLC, 175 F.3d 913, 914 (11th Cir. 1999); Abbott
Labs., Inc. v. Gen. Elec. Capital, 765 So.2d 737, 740
(Fla. 5th DCA 2000). Defendants have not challenged the
pleading sufficiency of Counts I, II, and V, and the Court is
satisfied that the Second Amended Complaint adequately
alleges breach of the License Agreements and Personal
Declaratory Judgment (Count VI)
VI seeks a declaration, pursuant to 28 U.S.C. § 2201, as
to the parties' obligations following Westover's
termination of the franchise relationship. Specifically
Dollar and Thrifty request a declaration that, contrary to
Defendants' assertion that they have been released from
any such obligation, Defendants are in fact bound to abide by
the License Agreements' post-termination covenants not to
declaratory judgment may only be issued in the case of an
‘actual controversy.' That is, under the facts
alleged, there must be a substantial continuing controversy
between parties having adverse legal interests.”
Emory v. Peeler, 756 F.2d 1547, 1552 (11th Cir.
1985). Based on the allegations in the Second Amended
Complaint, the Court finds there exists a substantial and
continuing “actual controversy” between the
parties as to the applicability of the non-compete
provisions. Plaintiffs have thus adequately stated a
claim for declaratory relief.
Breach of the VPPA (Counts III and IV)
III alleges that the VPPA required Westover “to
purchase and pay for a certain number of vehicles that were
agreed to between Westover and Dollar/Thrifty” (Doc.
#58, ¶ 51), and that “[a]fter agreeing to purchase
70 vehicles in one round and 65 vehicles in another round,
Westover attempted to cancel those orders and refused to take
delivery or pay for them.” (Id. ¶ 52.)
Count IV is based on the Individual Defendants' failure
to compensate Hertz for the damages caused by this alleged
breach, as required under the Personal Guaranty.
Defendants have not exactly argued that Count III fails to
state a claim, they do contend that the VPPA imposes no
obligation on Westover to purchase any vehicles and, in fact,
“expressly prohibits any orders of vehicles.”
(Doc. #59, p. 14.) According to Defendants, the VPPA
“is only an agreement to agree in the future regarding
vehicle orders and the terms thereof. Whatever orders and/or
payments for vehicles that may have been made by Westover
were . . . [made] pursuant to a separate written vehicle
supply agreement which has not been produced by Plaintiffs
and which is not a part of this lawsuit.” Id.
Defendants, in other words, do not believe any
non-performance breached the VPPA.
on the available materials, the Court agrees. Even assuming
the VPPA is an enforceable contract under Florida
lawand accepting as true the allegation that
Westover placed an order for vehicles which it later
cancelled, that cancellation did not materially breach
the VPPA. To the contrary, the express terms of the
VPPA leave clear that Westover's failure to
“purchase its full allocation of vehicles”
instead “constitute[s] a material default under the
License Agreement.” (Doc. #58-5 (emphasis added).)