United States District Court, S.D. Florida
ALTMAN UNITED STATES DISTRICT JUDGE
MATTER comes before the Court upon the
Defendants' Motion to Dismiss the Plaintiff's
Complaint under Federal Rules of Civil Procedure 12(b)(2) and
12(b)(6) (“MTD”) [ECF No. 5]. The Court has
carefully considered the parties' briefing, the record,
and the governing law. For the following reasons, the
Defendants' Motion is GRANTED. The
Plaintiff may file an Amended Complaint by December 4, 2019.
Federal Rule of Civil Procedure 12(b)(2), a defendant may
move to dismiss a claim for lack of personal jurisdiction.
“The determination of personal jurisdiction over a
nonresident defendant requires a two-part analysis by the
federal courts.” Cable/Home Commc'n Corp. v.
Network Prods., Inc., 902 F.2d 829, 855 (11th Cir.
1990). First, the court must satisfy itself that the exercise
of personal jurisdiction comports with the forum state's
long-arm statute. See Proudfoot Co. World
Headquarters L.P. v. Thayer, 877 F.2d 912, 919 (11th
Cir.1989). Second, the court must ensure that the exercise of
jurisdiction is consistent with the requirements of the Due
Process Clause of the Fourteenth Amendment. See Posner v.
Essex Ins. Co., Ltd., 178 F.3d 1209, 1214 (11th Cir.
1999). “Subjecting [a defendant] to jurisdiction in
Florida comports with due process so long as ‘minimum
contacts exist between [the defendant] and Florida and
exercising jurisdiction does not offend traditional notions
of fair play and substantial justice.” Id. at
1220 (citations and quotations omitted).
Florida law, “[a] plaintiff seeking to obtain
jurisdiction over a non-resident defendant initially need
only allege sufficient facts to make out a prima facie case
of jurisdiction.” Id. at 1214 (citation
omitted). “Plaintiff's burden in alleging personal
jurisdiction is to plead sufficient material facts to
establish the basis for exercise of such jurisdiction.”
Future Tech. Today, Inc. v. OSF Healthcare Sys., 218
F.3d 1247, 1249 (11th Cir. 2000). If a plaintiff pleads
sufficient “material facts” to support the
exercise of personal jurisdiction, the burden then shifts to
the defendant to challenge the plaintiff's allegations by
affidavits or other competent evidence. Id. at 1249.
“When a nonresident defendant raises a meritorious
defense to personal jurisdiction through affidavits,
documents or testimony, ” the plaintiff must establish
the propriety of jurisdiction by affidavits, testimony, or
other documents. Am. Airlines, Inc. v. Despegar.com USA,
Inc., No. 13-22773-CIV, 2014 WL 11880999, at *3 (S.D.
Fla. May 14, 2014) (citations omitted). In other words, the
“district court must accept the facts alleged in the
complaint as true, to the extent that they are uncontroverted
by the defendant's affidavits.” See Cable/Home
Commc'n Corp., 902 F.2d at 855. But, where
“the parties' affidavit and deposition evidence
conflict, the district court must construe all reasonable
inferences in favor of the plaintiff.” Id.
brought this action against the Defendants for “trade
dress infringement under the Lanham Act” and “for
state law claims for tortious interference, fraud, unjust
enrichment, disgorgement, constructive trust, and breach of
contract.” Compl. ¶ 1. PowerTec is a
“technology design and manufacturing company based in
Hollywood, Florida, ” while the Defendants are
“limited liability companies organized under the laws
of Tennessee with their principal place of business in
Nashville, Tennessee.” Compl. ¶¶ 1, 4.
PowerTec contends that it is an “international
leader” in the design, manufacture, and sale of direct
current power devices and “other standby power
solutions.” Compl. ¶ 3. The Defendants are
“sister companies” with common owners, directors,
and business goals who sell their products in Florida. Compl.
¶ 4. PowerTec hired Drew Hardin in August 2013 and,
shortly thereafter, promoted him to Vice President of Sales
and Marketing, where he remained until his resignation in
“late 2018.” Compl. ¶ 10.
Complaint avers that, at some point before Hardin resigned,
he “interfered with PowerTec's contracts and
business relationships” by “re-negotiating
contracts with PowerTec's existing customers in order to
position [the Defendants] to illegally assume those contracts
once Hardin left PowerTec's employ.” Compl. ¶
19. PowerTec also contends that the Defendants have been
“manufacturing, marketing, promoting, offering for
sale, and selling copies of” certain PowerTec products.
Compl. ¶ 21. Finally, PowerTec claims that Hardin
registered a website domain
name-www.PowerTecSolutions.net-while he was still
employed by PowerTec and then “refused to assign the
valuable domain name to PowerTec even though the domain name
was properly owned by PowerTec.” Compl. ¶ 20.
According to the Complaint, PowerTec and Hardin entered into
a settlement agreement-as a part of which Hardin agreed to
assign to PowerTec the PowerTec domain name, and PowerTec, in
turn, gave the Defendants a full release of all claims, known
and unknown. Id. Despite this settlement, PowerTec
says, the Defendants have continued to infringe upon
PowerTec's trade dress. Compl. ¶¶ 30-32. The
Defendants timely moved to dismiss PowerTec's Complaint.
[ECF No. 5].
Defendants' view, PowerTec's allegations that they
sell their products in Florida, that they “conduct
business” in Florida, and that “some of the acts
at issue” in this case occurred in Florida are
conclusory-and thus insufficient to establish a prima
facie case for personal jurisdiction. MTD at 7.
responds by citing paragraphs 4 and 5 of the Complaint, in
which it avers that the Defendants “sell their products
. . . in the State of Florida” and that Hardin
“conducts business in the State of Florida including
the Southern District of Florida.” Id. And, in
its effort to adduce additional allegations regarding the
Defendants' contacts with the State of Florida, PowerTec
has styled its Response as one verified “under penalty
of perjury” by Janet Wallin, PowerTec's Chief
Financial Officer. See Resp. at 8. These
“newly discovered” contacts include allegations
that the Defendants sold the “infringing”
products at a trade show in Orlando, Florida, in June of
their Reply, the Defendants counter that the “newly
discovered” allegations should have been included in an
amended complaint rather than incorporated in a response to a
motion to dismiss. In addition, the Defendants contest the
very substance of Ms. Wallin's allegations and attempt to
discredit her attestations through the filing of a separate
affidavit, signed by Drew Hardin himself. See
general matter, when “the parties' affidavit and
deposition evidence conflict, the district court must
construe all reasonable inferences in favor of the
Corp., 902 F.2d at 855. That said: “If a plaintiff
has overlooked an additional basis for the court to exercise
jurisdiction, it may always seek leave to amend. It cannot,
however, raise new bases for personal jurisdiction for the
first time in a response to a motion to dismiss that plainly
fall outside the scope of the Complaint's jurisdictional
statement.” Heliocol USA, Inc. v. Berrios, No.
609CV2045ORL31GJK, 2010 WL 11626617, at *2 (M.D. Fla. ...