United States District Court, S.D. Florida
P. GAYLES UNITED STATES DISTRICT JUDGE.
CAUSE comes before the Court on Defendant Bayerische
Motoren Werke Aktiengesellschaft's Motion to Dismiss for
Lack of Personal Jurisdiction and for Failure to State a
Claim (the “Motion”) [ECF No. 129]. The Court has
reviewed the Motion, argument of counsel, and the record and
is otherwise fully advised. For the reasons that follow, the
Motion is granted.
Braman's Franchise Agreement
action challenges the franchise agreements of one of the most
recognized car companies in the world: BMW. Plaintiff Braman
Motors, Inc. is a prominent car dealership in South
Florida. Braman is a franchisee of BMW of North America, LLC
(“BMW NA”) and has been the primary purveyor of
BMWs in South Florida for many years.
sued BMW NA and Bayerische Motoren Werke Aktiengesellschaft
(“BMW AG”) (collectively,
“Defendants”) here for making significant changes
to BMW's franchise agreement that Braman contends are
extortionary, unilateral, and violate both the original
franchise agreement and Florida law. The Corrected Third
Amended Complaint (the “Complaint”) [ECF No. 127]
names three specific changes: the addition of an Added Value
Program, [id. ¶¶ 28-66], BMW's
practice of “punching” vehicles that results in
Braman purchasing extra cars it claims to neither need nor
want, [id. ¶¶ 67-73], and BMW's dealer
effectiveness metric, a measure for calculating each
individual dealer's performance goals that Braman asserts
is biased and uses unfair metrics, [id. ¶¶
74-81]. Each of these programs, Braman contends, represents a
substantive change to the franchise agreement that was
imposed without notice and has resulted in fundamental
alterations to the dealer/manufacturer relationship and
Braman's business as a whole. Braman alleges these
changes caused Braman to lose profits and bonuses to which
Braman would have previously been entitled.
BMW AG and BMW NA's Corporate Relationship
is a German corporation that manufactures the cars that BMW
NA distributes throughout the United States to dealers like
Braman. Although some customers place specific
orders directly with BMW AG, dealers mostly submit their
orders to BMW NA which, in turn, submits them to BMW AG. BMW
NA handles all communications with dealers about specific
orders. BMW AG then completes the orders and ships the cars
to BMW NA, which is then responsible for ensuring the cars
reach their final destination in the United States.
Braman sued both BMW AG and BMW NA, Braman's contract is
exclusively with BMW NA. Braman named BMW AG as a defendant
because BMW AG is BMW NA's corporate parent and because
“many of the decisions and actions described [in the
Complaint] have been taken in concert with, and often at the
direction of, personnel and officials of BMW AG.” [ECF
No. 127, ¶ 82]. BMW AG has no offices or personnel in
the United States. BMW NA, however, is a Delaware corporation
with its principal place of business in New Jersey and with a
shipping location in Jacksonville, Florida. BMW NA and BMW AG
have their own management teams, their own books of business,
and their own financials. Four intermediate corporations
separate BMW AG and BMW NA, and BMW AG does not directly own
or hold any interest in BMW NA.
Complaint asserts eleven counts against both Defendants:
Count 1 - violation of the Florida Dealer Act, Fla. Stat.
§ 320.65(5), (6); Count 2 - violation of the Florida
Dealer Act, Fla. Stat. § 320.64(34); Counts 3 and 4 -
violations of the Florida Dealer Act, Fla. Stat. §
320.64(42)(a); Count 5 - violation of the Florida Dealer Act,
Fla. Stat. § 320.641; Count 6 - violation of the Florida
Dealer Act, Fla. Stat. § 320.696(6); Count 7 - violation
of the Florida Dealer Act, Fla. Stat. § 320.696(7);
Count 10 - violation of the Florida Dealer Act, Fla. Stat.
§ 320.64(42)(a); and Count 11 - violation of the Florida
Dealer Act, Fla. Stat. § 320.641. Braman also separately
brings two claims against BMW NA for breach of the Dealer
Agreement (Count 8) and breach of the implied covenant of
good faith and fair dealing (Count 9). Currently at issue is
BMW AG's Motion to Dismiss for Lack of Personal
Jurisdiction and for Failure to State a Claim, which is now
ripe for review.
plaintiff seeking to establish personal jurisdiction over a
nonresident defendant ‘bears the initial burden of
alleging in the complaint sufficient facts to make out a
prima facie case of jurisdiction.'” Louis
Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1350
(11th Cir. 2013) (quoting United Techs. Corp. v.
Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009)). Complaints
must include “properly pleaded facts pertinent to the
conduct and activities of the defendant in the forum
state[.]” Borislow v. Canaccord Genuity Grp. Inc.,
et al., No. 14-cv-80134, 2014 WL 12580259, at *4 (S.D.
Fla. June 27, 2014) (internal quotation marks omitted)
(citing Elmex Corp. v. Atl. Fed. Sav. & Loan
Ass'n of Ft. Lauderdale, 325 So.2d 58, 61 (Fla. 4th
DCA 1976)); see also Mcgee v. Cook, No.
8:09-CV-2543-T-27TGW, 2011 WL 1365024, at *4-5 (M.D. Fla.
Apr. 11, 2011) (holding that personal jurisdiction was
insufficiently pled where the original complaint contained
“insufficient specific allegations of these
Defendants' business activities in Florida, their liens
on Florida property, or their contracts to provide insurance
in Florida”). When a defendant submits evidence in
support of its challenge to personal jurisdiction, “the
burden traditionally shifts back to the plaintiff to produce
evidence supporting jurisdiction.” United Techs.
Corp., 556 F.3d at 1274 (quoting Meier ex rel. Meier
v. Sun Intern. Hotels, Ltd., 288 F.3d 1264, 1269 (11th
Cir. 2002)). “Where the plaintiff's complaint and
supporting evidence conflict with the defendant's
affidavits, the court must construe all reasonable inferences
in favor of the plaintiff, ” Diamond Crystal
Brands, Inc. v. Food Movers Int'l, Inc., 593 F.3d
1249, 1257 (11th Cir. 2010) (citation omitted), and still
must “accept the facts alleged in the complaint as
true, to the extent they are uncontroverted by the
defendant's affidavits.” Madara v. Hall,
916 F.2d 1510, 1514 (11th Cir. 1990).
federal court undertakes a two-step inquiry in determining
whether personal jurisdiction over a nonresident defendant
exists. First, the court must determine whether the exercise
of jurisdiction is appropriate under Florida's long-arm
statute or another jurisdictional statute. Under Florida law,
the long-arm statute is satisfied if the parties can
demonstrate that either general or specific jurisdiction
exists. See Dohler S.A. v. Guru, No. 16-23137-CIV,
2017 WL 4621098, at *3 (S.D. Fla. Oct. 16, 2017). Both
parties here agree that personal jurisdiction could only
attach through specific jurisdiction. Specific jurisdiction
“authorizes jurisdiction over causes of action arising
from or related to the defendant's actions within Florida
and concerns a nonresident defendant's contacts with
Florida only as those contacts related to the plaintiff's
cause of action.” Louis Vuitton, 736 F.3d at
1352 (citing Oldfield v. Pueblo de Bahia Lora, S.A.,
558 F.3d 1210, 1220 n. 27 (11th Cir. 2009)).
the court must determine whether personal jurisdiction over
the defendant violates the Due Process Clause of the
Fourteenth Amendment to the United States Constitution.
Mutual Serv. Ins. Co. v. Frit Indus., Inc., 358 F.3d
1312, 1319 (11th Cir. 2004). That is, whether the defendant
has such minimum contacts with the forum so that exercising