United States District Court, S.D. Florida
ORDER DENYING MOTION TO DISMISS
N. SCOLA, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on pro se Defendant Nicholas
Makozy's motion to dismiss the Plaintiff's complaint.
(ECF No. 10.) The Plaintiff has filed a response (ECF No. 12)
but the Defendant did not reply. Having considered the
record, the parties submissions, and the applicable law, the
Court denies the Defendant's motion. (ECF No. 10.)
a declaratory judgment action related to Plaintiff Spectrum
Image, Inc.'s (“Spectrum”) interest in its
pending federal trademark application for “Spectrum
Aesthetics.” (ECF No. 1 at ¶ 1.) According to the
complaint, the Defendant filed an application with the U.S.
Patent and Trademark Office for “Spectrum
Aesthetic” (the “Spectrum Mark”) on an
intent-to-use basis. (Id. at ¶ 13.) The
Defendant filed the application in the same class as
Spectrum's services: plastic and cosmetic surgery.
(Id.) Spectrum has filed its own application with
the Patent and Trademark Office for the Spectrum Mark.
(Id. at ¶ 20.) Now Spectrum seeks a declaration
from this Court that Spectrum has priority use and superior
rights to the Spectrum Mark.
Defendant has filed a one-page document titled “Motion
to Dismiss” asserting that he lives in Pennsylvania and
has never lived in Florida. (ECF No. 10.) Because the
Defendant is not represented by counsel, the Court will
construe this as a motion to dismiss for lack of personal
Rule of Civil Procedure 12(b)(2) governs motions to dismiss
for lack of personal jurisdiction. “Whether the court
has personal jurisdiction over a defendant is governed by a
two-part analysis.” Verizon Trademark Servs., LLC
v. Producers, Inc., 810 F.Supp.2d 1321, 1324 (M.D. Fla.
2011). First, the court must determine whether the applicable
state long-arm statute is satisfied. Future Tech. Today,
Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th
Cir. 2000). Second, if the state long-arm statute is
satisfied, the court must analyze “whether the exercise
of jurisdiction over the defendant comports with the
Constitution's requirements of due process and
traditional notions of fair play and substantial
justice.” Verizon Trademark Servs., 810
F.Supp.2d at 1324; Sculptchair, Inc. v. Century
Arts, 94 F.3d 623, 626 (11th Cir. 1996).
plaintiff bears the initial burden of proof of pleading
sufficient material facts to support long-arm jurisdiction.
Future Tech., 218 F.3d at 1249. The burden then
“shifts to the defendant to make a prima facie showing
of the inapplicability of the statute.” Id.
(quoting Prentice v. Prentice Colour, Inc., 779
F.Supp. 578, 583 (M.D. Fla. 1991)). Once this prima facie
showing is made, “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.”
Future Tech., 218 F.3d at 1249 (quoting
Prentice, 779 F.Supp. at 583).
Defendant's motion asserts that he never lived in
Florida, does not have an address in Florida, and has
continuously lived in Pennsylvania for 23 years. (ECF No. 10
at ¶¶ 2-3.) In response, the Plaintiff argues that
the Defendant is subject to this Court's personal
jurisdiction because he used a Florida address to apply for
the trademark at issue. (ECF No. 12 at 7.) The Defendant has
also incorporated a corporation and a limited liability
company using the same Florida address. (ECF No. 12-2.) Upon
careful review, the Court agrees with the Plaintiff.
long-arm statute provides for specific personal jurisdiction
over a non-resident defendant as follows:
(a) Any person, whether or not a citizen or resident of this
state, who personally or through an agent does any of the
acts enumerated in this subsection thereby submits himself or
herself and, if he or she is a natural person, his or her
personal representative to the jurisdiction of the courts of
this state for any cause of action arising from the doing of
any of the following acts:
(1) Operating, conducting, engaging in, or carrying on a
business or business venture in this state or having an