United States District Court, M.D. Florida, Tampa Division
WILLIAM F. JUNG, UNITED STATES DISTRICT JUDGE
matter comes to the Court on Defendants Austin Catlett,
William Lazo-Lopez, Christopher Lewis, George Prygocki, and
David Alegria’s motion to dismiss Plaintiff’s
complaint for lack of jurisdiction. Dkt. 12. Plaintiff filed
a response. Dkt 30. The Court finds that no hearing is
necessary and denies the motion.
inquiry for personal jurisdiction is two-fold: “(1)
whether personal jurisdiction exists over the nonresident
defendant . . . under Florida’s long-arm statute, and
(2) if so, whether that exercise of jurisdiction would
violate the Due Process Clause of the Fourteenth Amendment to
the U.S. Constitution.” Louis Vuitton
Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1350 (11th
Cir. 2013). Florida’s long-arm statute grants general
[a] defendant who is engaged in substantial and not isolated
activity within this state, whether such activity is wholly
interstate, intrastate, or otherwise, is subject to the
jurisdiction of the courts of this state, whether or not the
claim arises from that activity.
Stat. § 48.193(2) (2019). ‘Substantial and not
isolated activity’ refers to “continuous and
systematic” contact with the state. Wiggins v.
Tigrent, Inc., 147 So.3d 76, 85 (Fla. 2d DCA
2014). Since this is a high threshold for jurisdiction,
“if the defendant's activities meet the
requirements of this section, the due process requirement of
minimum contacts is [also] fulfilled.” Schwartzberg
v. Knobloch, 98 So.3d 173, 178 (Fla. 2d DCA 2012)
(quoting Camp Illahee Investors, Inc. v. Blackman,
870 So.2d 80, 85 (Fla. 2d DCA 2003)).
Defendants-except for George Prygocki-were the project
managers, permit handlers, and drafters for the Sterling,
Virginia office, which generated revenue of $1, 002, 701.42
from Florida projects for Florida-based clients between
December 31, 2017, through the end of their employment. Dkt.
30-17 ¶¶ 5 & 6. Defendant Prygocki was the
Director of OSP Engineering for the Southeast Region.
Id. Each Defendant communicated regularly with
Plaintiff’s employees based in Florida. From August
2017 to the end of his employment, Defendant Catlett sent at
least 257 emails to and received at least 178 emails from
Florida personnel. Id. ¶ 7. From August 2017 to
the end of his employment, Defendant Lazo-Lopez sent at least
204 emails to and received at least 617 emails from Florida
personnel-including 142 emails to the Accounting and
Invoicing Department in Florida. Id. ¶ 8. From
August 2017 to the end of his employment, Defendant Lewis
sent at least 855 emails to and received at least 1, 927
emails from Florida personnel-including 54 emails to the
president of the company. Id. ¶ 9. From August
2017 to the end of his employment, Defendant Prygocki sent at
least 698 emails to and received at least 1, 999 emails from
Florida personnel-including 43 emails to the president of the
company. Id. ¶ 10. From August 2017 to the end
of his employment, Defendant Alegria sent at least 444 emails
to and received at least 776 emails from Florida
personnel-mostly to senior project managers located in
Florida. Id. ¶ 11.
all of the Defendants worked on Florida projects. Dkt. 30 at
3-11. Of the Defendants who kept track of their billable
hours (Catlett, Lazo-Lopez, and Alegria), each billed
significant time to Florida clients for Florida projects.
Dkt. 30-20 ¶¶ 4-7. Catlett billed 421 hours on
Florida projects, Alegria billed 990 hours, and Lazo-Lopez
billed 129 hours. Id. All of Defendants visiting
Florida to do work for Florida projects. Dkt. 30 at 3-11.
Additionally, all of the Defendants were paid from Plaintiffs
Florida headquarters. Id. And, while not a
dipositive factor, each Defendant had a forum selection
clause in their employment contract agreeing to Florida as
the venue for actions arising from the contracts.
Id. at 19; Autonation, Inc. v. Whitlock,
276 F.Supp.2d 1258, 1263 (S.D. Fla. Aug. 1, 2003) (holding
that forum selections clauses are a “factor that weighs
in favor of exercising personal jurisdiction over a
nonresident defendant where other grounds exist to exercise
such jurisdiction.”); see also McRae v.
J.D./M.D., 511 So.2d 540 (Fla. 1987).
these contacts with the state of Florida were so continuous
and systematic that it would be “fundamentally
fair” to require them to answer to a lawsuit in
Florida. Consol. Mgmt. Sols., Inc. v. Dennis, No.
307-CV-1192-J16-MCR, 2008 WL 2694107, at *4 (M.D. Fla. July
7, 2008). Defendants were surely aware they were employed by
a Florida corporation with its primary office in Florida.
They worked on projects from Florida, visited Florida,
frequently sent emails to individuals in Florida, received
direction from supervisors (both directly and indirectly) in
Florida, and each of the Defendants agreed to a Florida forum
selection clause in their employment contract. Importantly,
all of these contacts were within the span of less than five
years. Compare Custom Fab, Inc. v. Kirkland, No.
6:13-CV-1511-ORL-31, 2014 WL 260090, at *4 (M.D. Fla. Jan.
23, 2014) (holding that emails and visits to Florida
occasionally over seven years was not “continuous and
systematic”); with Nordmark Presentations, Inc. v.
Harman, 557 So.2d 649, 651 (Fla. 2d DCA 1990) (holding
that emails and visits to Florida occasionally over two years
was “continuous and systematic”); and
AutoNation, Inc. v. Hankins, 03–14544 CACE (05),
2003 WL 22852206 at *4–6 (Fla. Cir. Ct. Nov. 24, 2003)
(holding that emails and visits to Florida occasionally over
eighteen months was “continuous and systematic”).
As such, the Defendants’ contacts with Florida are
enough to sustain general jurisdiction over each of the
Prygocki also moves to dismiss Plaintiff’s complaint
for insufficient service under Fed.R.Civ.P. 12(b)(5). Dkt. 12
at 20–21. Defendant Prygocki alleges that he was not
personally served and instead found the process papers
sitting inside of his screen door when he got home one
afternoon. Dkt. 12-4 ¶ 17. Plaintiffs allege that he was
personally served. Dkt. 29.
12(b)(5) motion challenging sufficiency of service must
describe with specificity the deficiency of the service.
Scotlynn USA Div., Inc. v. Titan Trans Corp., No.
2:18-CV-521-FTM-99CM, 2019 WL 166325, at *2 (M.D. Fla. Jan.
10, 2019). “The plaintiff makes a prima facie showing
of proper service by presenting a signed return of
service.” Id. If the plaintiff can establish
that service was proper then the burden shifts back to the
defendant to bring “strong and convincing
evidence” of insufficient process. Developers Sur.
& Indem. Co. v. Italian Cast Stone, Inc., No.
8:16-CV-3491-T-24TGW, 2017 WL 3113469, at *2 (M.D. Fla. May
5, 2017). Any conflict in the parties’ affidavits
should be resolved in favor of the plaintiff. Kammona v.
Onteco Corp., 587 Fed.Appx. 575, 578 (11th Cir. 2014)
Plaintiff has a signed return of service alleging proper
personal service. Dkt. 29-1. Therefore, Defendant Prygocki
has the burden to bring “strong and convincing”
evidence of insufficient service. Defendant Prygocki provides
an affidavit alleging that process was “left in my
screen door.” Dkt. 12-4 ¶ 17. At this point the
Court is left with two conflicting affidavits concerning
whether service was proper. Since Defendant Prygocki has
actual notice of this case and conflict in the parties’
affidavits should be resolved in favor of Plaintiff, this
Court find service of process sufficient.
foregoing reasons, Defendant’s motion to dismiss, Dkt.
12, is denied. Defendants shall file responses to ...