United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE United States District Judge
THE COURT are the Motion of Defendant Michael
Saiaman to Dismiss the Complaint Pursuant to Fed.R.Civ.P.
12(b)(2) and (3) or, in the alternative, to Transfer Venue
(Dkt. 6), Plaintiffs opposition (Dkt. 8), Defendant's
supplemental record (Dkts. 31, 32), and Plaintiffs response
to Defendant's supplemental record (Dkts. 34, 37).
Capital Funding Corp. sued Michael Saiaman in Pinellas County
Circuit Court alleging the breach of a factoring and security
agreement and default on a promissory note. (Dkt. 2). Saiaman
removed the case to this Court on the basis of diversity.
(Dkt. 1). Fie moves to dismiss for lack of personal
jurisdiction and in the alternative moves to transfer this
action to the Eastern District of Pennsylvania.
Jurisdictional discovery was conducted and Salaman's
motion is ripe for review.
relevant jurisdictional facts are as follows: Saiaman, a
citizen of Pennsylvania, is the former chairman of the board
and chief executive officer of Skinny Nutritional
Corp. (Saiaman Dep. 10:6-13, June 9, 2017, Dkt.
34-2). Through the use of a consultant, Skinny selected UCF
as a factoring company. (Saiaman Dep. 20:1-5, 26:6-16, Dkt.
34-2). On November 12, 2007, Skinny and UCF entered into a
Factoring and Security Agreement ("FSA"). (FSA,
Dkt. 2 Ex. A). Section 29.1 of the FSA includes a
forum-selection clause which states in pertinent part that
"[a]ny suit, action or proceeding arising hereunder...
shall... be instituted in any court sitting in
[Florida.]" (Dkt, 2 at 12).
November 13, 2007, Saiaman, individually, executed a Validity
Statement guaranteeing the prompt performance of Skinny's
obligations. (Dkt. 2 at 16). The Validity Statement includes
a choice of law provision, but does not include a
forum-selection clause. (Id.). On June 6, 2012, UCF,
Skinny, and Saiaman executed a Senior Promissory Note for a
loan of $300, 000, which Saiaman signed as guarantor.
(Saiaman Dep. Ex. 14, Dkt. 34-3 at 49-53). The Senior
Promissory Note and corresponding Guaranty Agreement include
a choice of law provision, but not a forum-selection clause.
the plaintiff bears the burden of alleging a prima facie case
of jurisdiction over a nonresident defendant. United
Techs. Corp. v. Mazer, 556F.3d 1260, 1274 (11th Cir.
2009). When the defendant challenges jurisdiction with
affidavits, '"the burden traditionally shifts back
to the plaintiff to produce evidence supporting
jurisdiction.'" Id. (citations omitted);
see also Polski Linie Oceaniczne v. Seasafe Transp.
A/S, 795 F.2d 968, 972 (11th Cir. 1986) (noting that
"[i]f the defendant sustains this burden, the plaintiff
is required to substantiate the jurisdictional allegations in
the complaint by affidavits or other competent proof, and not
merely reiterate the factual allegations in the
complaint"). Where the evidence conflicts, "the
court must construe all reasonable inferences in favor of the
plaintiff." Meier ex rel Meier v. Sun Int'l
Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002)
personal jurisdiction over a nonresident defendant is a
two-part inquiry: "the exercise of jurisdiction must (1)
be appropriate under the state long-arm statute and (2) not
violate the Due Process Clause of the Fourteenth Amendment to
the United States Constitution." Mazer, 556
F.3d at 1274. The construction and application of
Florida's long-arm statute is a question of Florida law.
Therefore, federal courts construe the provisions as would
the Florida Supreme Court. Horizon Aggressive Growth,
L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162, 1167 (11th
Cir. 2005). And, "Florida's long-arm statute is to
be strictly construed." Scitlptchair, Inc. v.
Century Arts, Ltd., 94 F.3d 623, 627 (11th Cir. 1996)
Plaintiff argues that Salaman submitted to Florida's
jurisdiction on the following grounds: 1) Salaman executed
the Validity Statement to the FSA between Skinny and UCF and
the FSA includes a forum-selection clause, 2) Salaman
executed a Senior Promissory Note, which includes a choice of
law provision, and 3) Salaman breached his agreement to make
payments to UCF in Florida. Further, UCF contends that
Salaman has sufficient minimum contacts with Florida.
Florida's Long-Arm Statute
Florida's long-arm statute, a nonresident can submit to
Florida's jurisdiction by entering into a contract that
complies with Fla. Stat. § 685.102. Fla. Stat.
§48.193(1)(a)9. "To satisfy the statutory
requirements, the contract... must (1) include a choice of
law provision designating Florida Law as the governing law,
(2) include a provision whereby the [nonresident] agrees to
submit to the jurisdiction of the courts of Florida, (3)
involve consideration of not less than $250, 000, (4) not
violate the United States Constitution, and (5) either bear a
substantial or reasonable relation to Florida or have at
least one of the parties be a resident of Florida or
incorporated under its laws." Jetbroadband WV, LLC
v. MasTec N. Am., Inc., 13 So.3d 159, 162 (Fla. 3d DCA
the Validity Statement nor the Senior Promissory Note include
a provision in which Salaman agreed to submit to jurisdiction
in Florida. UCF contends that Salaman, a nonsignatory, is
nonetheless bound by the forum-selection clause in the FSA,
citing Lipcon v. Underwriters at Lloyd's, 148
F.3d 1285, 1299 (11th Cir. 1998) (forum-selection clause
enforced against a "closely related" nonsignatory
in an international agreement where parties agreed to England
as the forum). UCF's reliance on Lipcon is
misplaced, however. In Lipcon, Florida's
long-arm statute was not at issue.
party relies on a contract to confer jurisdiction,
Florida's long-arm statute requires a provision in which
the nonresident agreed to submit to Florida's
jurisdiction. Fla. Stat. §§ 48.193(1)(a)9, 685.102;
Jetbroadband, 13 So.3d at 162. Strictly construed,
Florida's long-arm statute requires more than a close
relation to confer jurisdiction over a nonsignatory,
nonresident. Fla. Stat. §§ 48.193(1)0)9, 685.102;
Century Arts, 94 F.3d at 627. A provision in which
Salaman agreed to submit to jurisdiction in Florida is not
included in either the Validity Statement or the Senior
Promissory Note. (Dkt. 2 at 16; Salaman Dep. Ex. 14, Dkt.
34-3 at 49-53). These contracts, therefore, do not complywith
Florida's statutory requirements, ...