United States District Court, M.D. Florida, Tampa Division
D. Whittemore Uhtted States District Judge
THE COURT are Defendants Raut, LLC and Gennadi
Dorochenko's Motion to Dismiss the Complaint (Dkt. 12),
Plaintiffs Motion to Transfer Venue (Dkt. 18), and Raut and
Dorochenko's memorandum in opposition to the motion to
transfer (Dkt. 19). Plaintiff did not file an opposition to
the motion to dismiss. Upon consideration, the motion to
dismiss the complaint (Dkt. 12) is DENIED.
The motion to transfer is (Dkt. 18) is
sues Raut for payment owed under a Promissory Note (Count I)
and for money lent (Count II). (Dkt. 1). Plaintiff sues
Dorochenko for breach of a guaranty. (Id., Count
IV). And Plaintiff sues both Defendants for unjust enrichment
(Count V) and promissory estoppel (Count VI). (Id.).
Plaintiff is a Florida banking corporation with its principal
place of business in Florida. Raut is a Kentucky limited
liability company whose members are Kentucky residents.
(Id. at ¶¶ 2-3).
the plaintiff bears the burden of alleging a prima facie case
of jurisdiction over a nonresident defendant. United
Techs. Corp. v. Mazer, 556 F.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. (internal quotation marks and 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" (internal quotation marks and citations
omitted)). 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." Sculptchair, Inc. v. Century
Arts, Ltd., 94 F.3d 623, 627 (11th Cir. 1996) (citation
Complaint includes no specific allegations of personal
jurisdiction over the nonresident Defendants. (Dkt. 1).
Rather, the Complaint alleges that subject matter
jurisdiction exists based on diversity of citizenship and the
amount in controversy, and that venue is proper in this
district because "the parties have contractually agreed
that Florida is the exclusive forum, venue, and place of
jurisdiction." (Id. at ¶¶ 5-6).
Defendants argue that Plaintiffs allegations are insufficient
to meet its burden of alleging a prima facie case of
jurisdiction over them. (Dkt. 12 at p. 3) (citing
Defendants point out that there are no clauses in the note
executed by Raut or in Dorochenko's guaranty providing
that Florida is the exclusive forum. (Promissory Note, Dkt.
1-2); (Dorochenko Guaranty, Dkt. 1-10). However, a Security
Agreement executed by Raut provides, "[t]his Agreement
is governed by the laws of Kentucky, the United States of
America, and to the extent required, by the laws of the
jurisdiction where the Property is located, except to the
extent such state laws are preempted by federal law. In the
event of a dispute, the exclusive forum, venue and place of
jurisdiction will be in Florida, unless otherwise required by
law." (Dkt. 1-3). Plaintiff has not asserted any claims
relating to the Security Agreement. See (Dkt. 1 at
¶ 11) ("Lender is not presently seeking an order
for repossession of the Collateral, but specifically restates
and reaffirms its protected security interest therein and
reserves its rights in and to the Collateral.").
also provide Dorochenko's affidavit in support of their
motion to dismiss for lack of jurisdiction and improper
venue. (Dkt. 15-1). Dorochenko avers that he resides in
Kentucky, he is one of the managers of Raut, Raut does
business in Kentucky, Raut's bank accounts are located in
Kentucky, and neither he nor Raut engage in business
activities in Florida. (Id.). Defendants argue that
the affidavit establishes that they do not have sufficient
minimum contacts with Florida. (Dkt. 12 at p. 4n.2).
failed to meet its initial burden of alleging a prima facie
case of jurisdiction over Defendants. See Mazer, 556
F.3d at 1274. It alleges that the parties contractually
agreed that Florida is the exclusive forum, venue, and place
of jurisdiction. (Dkt. 1 at ¶ 6). As noted, however, the
note and guaranty attached to the Complaint do not include
clauses designating Florida as the forum, and Plaintiff
brings no claims relating to the Security Agreement that
includes a forum selection clause. The exhibits govern over
Plaintiffs contrary allegations. Crenshaw v. Lister,
556 F.3d 1283, 1292 (11th Cir. 2009).
Plaintiffs allegation that the parties contractually agreed
to Florida as the forum is insufficient to establish personal
jurisdiction over Defendants because the documents do not
comply with Florida's statutory long-arm jurisdiction
requirements. See Fla. Stat. § 48.193(1)(a)9.
(citing Fla. Stat. § 685.102). Neither the note executed
by Raut nor Dorochenko's guaranty include provisions
designate Florida law as the governing law or provide that
the nonresidents agreed to submit to the jurisdiction in
Florida. See Jetbroadband WV, LLC v. MasTec N. Am.,
Inc., 13 So.3d 159, 162 (Fla. Dist. Ct. App. 2009)
("To satisfy the statutory requirements [of section
685.102], the contract... must (1) include a choice of law
provision designating Florida Law as the governing law, (2)
include a provision whereby the non-resident agrees to submit
to the jurisdiction of the courts of Florida"). The
Security Agreement executed by Raut does not satisfy
Florida's long-arm jurisdiction requirements because it
provides that the agreement is governed by Kentucky law.
See Id. Further, Dorochenko did not sign the
Security Agreement and, therefore, did not agree to its forum
selection clause. See id.
Plaintiff had met its initial burden of alleging a prima
facie case of jurisdiction, Defendants challenged
jurisdiction with Dorochenko's affidavit, which
demonstrates that he and Raut have insufficient contacts with
Florida to satisfy due process requirements. (Dkt. 15-1).
Accordingly, the burden shifted back to Plaintiff to produce
evidence supporting jurisdiction. Mazer, 556 F.3d at
1274; Polski Linie Oceaniczne, 795 F.2d at 972.
Plaintiff did not file a response or provide evidence, and,
therefore, failed to meet its burden of establishing personal
jurisdiction. See Mazer, 556 F.3d at 1280 (holding
that the plaintiff proffered no competent evidence to
establish jurisdiction in response to a defendant's
affidavit). Personal jurisdiction over Defendants, therefore,
does not exist. See id.
also seek dismissal of the Complaint for improper venue.
(Dkt. 12). Plaintiff alleges venue is proper under 28 U.S.C.
§ 1391(b) because the parties contractually agreed that
Florida is the proper venue. "A civil action may be
brought in ... a judicial district in which a substantial
part of the events or omissions giving rise to the claim
occurred." 28 U.S.C. § 1391(b). "Whether the
parties entered into a contract containing a forum-selection
clause has no bearing on whether a case falls into one of the
categories of cases listed in § 1391(b), " and,
therefore, "venue is proper so long as the requirements
of § 1391(b) are met, irrespective of any
forum-selection clause." Atlantic Marine Constr. Co.
v. United States Dist. Court for the W. Dist. Tex., 134
S.Ct. 568, 577-78 (2013). In any event, the absence of a
forum selection clause in the note or guaranty attached to
the Complaint refutes Plaintiffs asserted basis for venue.
See Crenshaw, 556 F.3d at 1292.
determined that personal jurisdiction over Defendants does
not exist and that venue is improper, the question to be
resolved is whether Plaintiff presents a basis to transfer
this case to the United States District Court for the Eastern
District of Kentucky. "The district court of a district
in which is filed a case laying venue in the wrong division
or district shall dismiss, or if it be in the interest of
justice, transfer such case to any district or division in
which it could have been brought." 28 U.S.C. §
1406(a). "The language of s 1406(a) is amply broad
enough to authorize the transfer of cases, however wrong the
plaintiff may have been in filing his case as to venue,
whether the court . in which it was filed had personal
jurisdiction over the defendants or not." Goldlawr,
Inc. v. Heiman, 369 U.S. 463, 466 (1962); see also
United States v. Saldana, 273 Fed.Appx. 845, 847 (11th
Cir. 2008) (per curiam) ("If it is in the interest of
justice, the district court has the alternative of
transferring the petition to the proper district
makes no argument that transfer of venue is in the interest
of justice. (Dkt. 18). It contends merely that the action
could have been brought in the United States District Court
for the Eastern District of Kentucky because Raut's
members reside in that district. (Id. at
¶¶ 6-9). Defendants oppose transfer, arguing that
the complaint should be dismissed for lack of personal
jurisdiction and improper venue, notwithstanding Plaintiffs
motion to transfer. (Dkt. 19). As noted, however, transfer is
an alternative to dismissal even when personal jurisdiction
is lacking. See Goldlawr, 369 U.S. at 466. And
Defendants acknowledge that transfer is preferred over
dismissal when a plaintiff brings a case in an improper