United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
GREGORY J. KELLY UNITED STATES MAGISTRATE JUDGE
cause came on for consideration without oral argument on the
MOTION: MOTION TO DISMISS COMPLAINT AND INCORPORATED
MEMORANDUM OF LAW IN SUPPORT (Doc. No. 17)
FILED: May 28, 2019
THEREON it is RECOMMENDED
that the motion be DENIED.
April 9, 2019, Plaintiff filed a Complaint against Defendants
for violations of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et seq.
and the Florida Consumer Collection Practices Act
(“FCCPA”), Fla. Stat. § 559.55 et
seq. Doc. No. 1. Defendant Gary S. Williky
(“Williky”) is the sole managing member of
Defendant Lake City Credit LLC (“Lake City
Credit”). Doc. No. 1 at 2. Williky registered Lake City
Credit, a Delaware limited liability company, with the
Florida Secretary of State in 2018 and began collecting
consumer debts. Doc. No. 1 at 2, 4. Plaintiff alleges that,
among other things, Defendants “engaged in an
orchestrated scheme to get Mr. Koch to pay a debt which he
had zero legal obligation to pay, ” by making false and
misleading representations suggesting that the debt was being
reported to credit reporting agencies, and by attempting to
collect more than $1, 187.78 of interest accrued on a debt
that was no longer subject to the accumulation of
interest. Doc. No. 1 at 12, 14. Plaintiff alleges
Lake City Credit contacted him via mail and telephone
regarding the debt. Doc. No. 1 at 6, 10, 11. Plaintiff
alleges that Williky was personally involved with the
collection efforts and was personally responsible for setting
the policies under which such action was taken. Doc. No. 1 at
15, 16. Plaintiff alleges that Defendants are jointly and
severally liable for their actions. Doc. No. 1 at 15, 17.
28, 2019, Williky filed a Motion to Dismiss for Lack of
Jurisdiction (the “Motion”). Doc. No. 17. Williky
argues that Plaintiff concedes that Williky resides in Texas
and that Plaintiff did not allege any additional facts to
suggest a nexus between Williky and Florida. Doc. No. 17 at
3. On June 11, 2019, Plaintiff filed a Response in Opposition
to the Motion (the “Response”). Doc. No. 23.
Plaintiff argues Williky failed to file affidavits in support
of the Motion. Doc. No. 23 at 3-4. Plaintiff also argues that
he alleged personal actions by Williky both in facilitating
the fraudulent scheme as well as executing it. Doc. No. 23 at
federal district court in Florida may exercise personal
jurisdiction over a nonresident defendant to the same extent
that a Florida court may, so long as the exercise is
consistent with federal due process requirements.”
Licciardello v. Lovelady, 544 F.3d 1280, 1283 (11th
Cir. 2008). The Court employs a two-prong test to make this
determination. First, the Court determines whether
Florida's long-arm statutes permits the exercise of
personal jurisdiction over the defendant. Sculptchair,
Inc. v. Century Arts, Ltd., 94 F.3d 623, 626 (11th Cir.
1996). Then, the Court must determine whether sufficient
minimum contacts exist between the defendant and the forum
state to satisfy “traditional notions of fair play and
substantial justice.” Id. (citations omitted).
Florida's long-arm statute is satisfied, there must be
certain minimum contacts with the forum so that, under the
due process clause, the suit does not offend
“‘traditional notions of fair play and
substantial justice.'” Int'l Shoe Co. v.
Washington, 326 U.S. 310, 319 (1945) (quoting
Milliken v. Meyer, 311 U.S. 457, 463 (1940)). There
are minimum contacts sufficient for personal jurisdiction if
the defendant purposefully directed his activities at the
forum state's residents, and the litigation results from
injuries that arise out of or relate to those activities.
Burger King Corp. v. Rudzewicz, 471 U.S. 463, 475
(1985); Alston v. Summit Receivables, No.
6:17-cv-1723, 2018 WL 3448595, at *3 (M.D. Fla. June 27,
2018). A single act can fulfill this requirement if that act
creates a substantial connection between the defendant and
the forum state. Burger King Corp., 471 U.S. at 476
n.18. Florida has a “very strong interest in affording
its residents a forum to obtain relief from intentional
misconduct of nonresidents causing injury in Florida.”
Licciardello, 544 F.3d at 1288.
suing a non-resident defendant, the complaint must contain
“sufficient facts to make out a prima facie case of
jurisdiction.” United Techs. Corp. v. Mazer,
556 F.3d 1260, 1274 (11th Cir. 2009). The allegations in the
complaint are taken as true if the defendant does not present
affidavits controverting them, and all reasonable inferences
are resolved in the plaintiff's favor. Consol. Dev.
Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th Cir.
2000). Only when the defendant files affidavits challenging
jurisdiction, does the plaintiff have the burden of producing
affidavits demonstrating that jurisdiction exists. Posner
v. Essex Ins. Co., 178 F.3d 1209, 1214 (11th Cir. 1999).
Motion, Williky argues there is no general or specific
jurisdiction over him. Doc. No. 17. He argues he is a
resident of Texas and that there is no nexus between Williky
and Florida alleged in the Complaint sufficient to establish
both personal jurisdiction under Florida's long-arm