Opinion
Case No: 02-23074-CIV-ALTONAGA/BANDSTRA
October 31, 2003
ORDER GRANTING FUNK MOB MUSIC. LLC'S MOTION TO DISMISS
THIS CAUSE came before the Court upon Defendant, Funk Mob Music LLC's Motion to Dismiss for Lack of Personal Jurisdiction pursuant to F.R.C.P 12(b)(2), or in the Alternative Dismiss or Transfer for Improper Venue ( 28 U.S.C. § 1406(a)), or in the Alternative to Transfer for Convenience ( 28 U.S.C. § 1404(a)) (D.E. 99-1-3); and Plaintiff, Nene Montes' Motion for Leave to File Sur-Reply to Defendant's Motion (D.E. 111). The Court has reviewed the Motions, pertinent portions of the record and pertinent authorities.
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff, Nene Montes ("Montes"), initiated this action on August 30, 2002, in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County against Defendants, Capitol Records, Inc., Priority Records, LLC, and Funk Mob Music, LLC. The case was subsequently removed to the Southern District of Florida based on federal question jurisdiction. On November 4, 2002, Defendants, Capitol Records, Inc. and Priority Records, LLC, were dismissed pursuant to Plaintiff's Notice of Voluntary Dismissal. On April 22, 2003, the remaining Defendant, Funk Mob Music, LLC ("FMM"), was dismissed for lack of personal jurisdiction. The order of dismissal was subsequently vacated and Plaintiff was given leave to amend his complaint to include facts to support jurisdiction. The present motion addresses the Amended Complaint.
Plaintiff maintains that the Motion to Dismiss is unauthorized. This, however, Is not supported by the record. Once Plaintiff filed a new complaint to add facts to support personal jurisdiction, Defendant was entitled under Rule 12 of the Federal Rules of Civil Procedure to either answer the new complaint or to respond with a motion to dismiss to assert defenses under subsection (b), The May 20, 2003 Order, which vacated an earlier dismissal, cannot be construed to indicate that the Court was satisfied with Plaintiff's jurisdictional allegations or that Defendant could not file another motion to dismiss for lack of personal jurisdiction. Therefore, Plaintiff has also failed to persuade the undersigned that he should be given additional time to address this motion "on the merits."
Plaintiffs action concerns the ownership of four master sound recordings of songs entitled "Uncle Jam Wants You," "One Nation Under a Groove," "Electric Spanking of War Babies," and "Hardcore Jollies" (collectively the "Masters"). It is alleged that Plaintiff is the sole owner of Association of Parliament Funkadelic Members 73-81, Inc. ("Association"), a Florida corporation, and Tercer Mundo, Inc., an inactive California corporation. Plaintiff alleges that pursuant to separate agreements with these corporations, he owns the exclusive rights to manufacture, distribute, and sell the Masters. Plaintiff alleges that in December of 1999, he and Tercer Mundo entered into another licensing agreement with Charly Acquisitions Limited ("Charly"), which granted Charly the exclusive rights to the Masters in the territory of the World, excluding the United States and Canada.
Plaintiff further alleges that FMM, through its attorneys, wrongfully published false and defamatory information about Plaintiff to a third party. Specifically, Plaintiff claims that FMM'S attorneys made statements such as: "Mr. Monies has absolutely no rights in the Masters and his claims are fabricated and without any basis," and "Mr. Montes has obviously fabricated documents in an attempt to interfere with my client's rights." Further, it is alleged that Plaintiff received these defamatory statements in Florida. Plaintiff also alleges that Defendant published statements charging Plaintiff with dishonesty or dishonest practices so as to prejudice Plaintiff's business. Although he has not specifically identified these statements nor their recipient, Plaintiff alleges that the statements relating to dishonesty constitute libel per se.
Montes alleges that this Court has jurisdiction over Defendant, FMM, pursuant to Section 48.193(1)(b), Florida Statutes. Specifically, Plaintiff maintains that FMM committed tortious acts within Florida because it allegedly converted to its own use the Plaintiff's rights in the Masters and committed libel per se against Plaintiff. FMM has allegedly sold, marketed and distributed CDs containing the Masters throughout Florida, the United States and Canada, without the knowledge, consent or authorization of Plaintiff.
MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
The Court can properly exercise personal jurisdiction over FMM, a nonresident defendant, only if the Florida long-arm statute and the Due Process Clause of the Fourteenth Amendment are satisfied. Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1214 (11th Cir. 1999); Cable/Home Communication Corp. v. Network Prods, Inc., 902 F.2d 829, 855 (11th Cir. 1990). As the extent of the long-arm statute is governed by Florida law, this Court must construe it as would the Florida Supreme Court. Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 631 (11th Cir. 1991). Under Florida law, "[a] plaintiff seeking to obtain jurisdiction over a nonresident defendant initially need only allege jurisdiction." Posner, 178 F.3d at 1214 (citing Electro Eng'g Prods. Co. v. Lewis, 352 So, 2d 862, 864 (Fla. 1977)). The plaintiff then bears the burden of proving jurisdiction by affidavits, testimony or documents "when the non-resident defendant raises a meritorious defense to personal jurisdiction through affidavits, documents or testimony." Musiker v. Project a vision, Inc., 960 F. Supp. 292, 294 (S.D.Fla. 1997); Kim v. Keenan, 71 F. Supp.2d 1228, 1231 (M.D. Fla. 1999) ("If defendants sufficiently challenge plaintiffs assertions, then plaintiff must affirmatively support his or her jurisdictional allegations, and may not merely rely upon the factual allegations set forth in the complaint,"). If the long-arm statute is satisfied, the Court then examines whether the nonresident defendant has sufficient contacts with Florida so that "maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" American Fin. Trading Corp. v. Bauer, 828 So.2d 1071, 1075 (Fla. 4th DCA 2002) (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310 (1945)).
Addressing the first requirement, the Florida long-arm statute provides, in pertinent part:
(1) 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 doing of any of the following acts:
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(b) Committing a tortious act within this State.
FLA. STAT. § 48.193(1)(b). For personal jurisdiction to attach under the Florida long-arm statute, Plaintiff must at least allege that FMM's alleged conversion, defamation and libel per se caused injury in Florida. Posner, 178 F.3d at 1217 (noting split of authority in Florida courts of whether act or injury must occur in Florida, while applying Eleventh Circuit's construction of subsection (1)(b); Response Reward Sys., LC, v. Meijer, Inc., 189 F. Supp.2d 1332, 1337 (M.D. Fla. 2002) (citing Posner and noting that Florida Supreme Court has not resolved conflict). Plaintiff has alleged injuries in Florida resulting from Defendant's alleged tortious acts. Thus, under Eleventh Circuit precedent, Plaintiff alleges sufficient facts to fall within the ambit of subsection (1)(b) of the Florida long-arm statute. Declarations filed by Ron Brembry and Bruce Peterson, as representatives of FMM, do not rebut these allegations given that the declarations merely state that defamation was not committed within Florida. See Posner, 178 F.3d at 1215 (finding that "conclusory assertions of ultimate fact are insufficient to shift to the Plaintiffs the burden of producing evidence supporting jurisdiction."). Whether or not a defendant actually committed a tort within Florida cannot be examined on a motion to dismiss.
With the first prong of the jurisdictional analysis satisfied, the Court next considers whether sufficient minimum contacts exist to satisfy due process. Generally, in examining a defendant's minimum contacts with the forum, courts apply three criteria:
First, the contacts must be related to the plaintiff's cause of action or have given rise to it Second, the contacts must involve some purposeful availment of the privilege of conducting activities within the forum, thereby involving the benefits and protections of its laws. Finally, the defendant's contacts within the forum state must be such that [it] should reasonably anticipate being haled into court here.Sculptchair, Inc., 94 F.3d at 631. Defendant has established by affidavit that it has no agents or offices in Florida. While Plaintiff's Complaint alleges that FMM sells recordings of the Masters in Florida through agents or the internet, this alone is insufficient. See Response Reward Sys. LC. v. Meijer, Inc., 189 F. Supp.2d 1332, 1338-1339 (M.D. Fla. 2002) (finding defendant's internet coupons were insufficient to show that activities were "purposefully directed" to Florida). Moreover, Plaintiff has failed to establish that the defamation or libel per se arose out of any internet activity or sales in Florida. Indeed, Plaintiff has not alleged that any defamatory remarks were published to third-parties in Florida. See Carlyle v. Palm Beach Polo Holdings, Inc., 842 So.2d 1013, 1014 (Fla. 4th DCA 2000) (reversing trial court's denial of motion to dismiss because plaintiff failed to establish connexity between claims for defamation and defendant's communications into Florida).
Lastly, Plaintiff has not established that Defendant advertised or marketed any products in Florida, given that FMM has shown that it was not responsible for these activities. See Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 112 (holding that mere placement of a product in the stream of commerce, without more, was not an act of the defendant purposefully directed to forum state; additional conduct such as advertising or marketing product in the state was necessary). Therefore, because the Defendant lacks sufficient minimum contacts with this forum, Plaintiff does not satisfy the due process requirements of the Fourteenth Amendment.
Having decided the issue of personal jurisdiction, the Court need not reach the issue of transfer pursuant to 28 U.S.C § 1404 or § 1406. Venue in this case is proper because the case was properly removed to the district where the state action was pending. Hollis v. Florida State University, 259 F.3d 1295, 1300 (11th Cir. 2001). The Court cannot adequately evaluate whether it is in the "interest of justice" to transfer this case because only FMM has made an appearance and Plaintiff vigorously opposes transfer. Compare Aguacate Consolidated Mines, Inc., 566 F.2d 523, 524-25 (5th Cir. 1978) (affirming transfer of removed case upon request by plaintiff when court lacked personal jurisdiction over defendant, despite venue being proper) with Carteret Savings Bank, FA v. Shushan, 919 F.2d 225, 232 (3d Cir. 1990) (finding that plaintiff need not accept transfer in lieu of dismissal when venue was properly laid and plaintiff opposed transfer). Accordingly, it is
This Court found that plaintiff had not established venue was properly laid in the Southern District of Florida in a related case (Case No. 03-21531-CIV-ALTONAGA/BANDSTRA). Unlike the present case, the related case was directly filed in federal court based on diversity jurisdiction.
On September 16, 2003, Plaintiff filed a Supplemental Proof of Service indicating that he had served Defendants, Capitol Records, Inc. and Priority Records, LLC, with process. However, the "proof of service" does not indicate the date of service. Thus, the deadline for responding to the Complaint is unclear and a discussion of transfer is inappropriate when the other Defendants have not yet responded to the Amended Complaint.
ORDERED AND ADJUDGED that Defendant's Motion to Dismiss for Lack of Personal Jurisdiction (D.E. 99-1) is GRANTED. Defendant's Motion to Dismiss or Transfer for Improper Venue (D.E. 99-2) and Motion to Transfer for Convenience (D.E. 99-3) are DENIED, as moot. Plaintiffs claims against Defendant, Funk Mob Music, Inc. are DISMISSED. Plaintiff's Motion for Leave to File Sur-Reply (D.E. 111) is DENIED.