# Clements v. Apax Partners LLP

> District Court, M.D. Florida · August 10, 2021

URL: https://www.frixlaw.com/law-library/cases/10108128

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 10, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10108128

## How later opinions describe it (automated extraction)

- Noting “that the majority of courts nationwide have found a fraudulent transfer does not constitute a tortious act for purposes of Florida's long-arm statute.”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

LOUIS MATTHEW CLEMENTS,

Plaintiff,

v. Case No: 2:20-cv-310-JES-MRM

APAX PARTNERS LLP, ANDREW
SILLITOE, in his official
capacity as Co-CEO of Apax
Partners LLP, and MITCH
TRUWIT, in his official
capacity as Co-CEO of Apax
Partners LLP,

Defendants.

OPINION AND ORDER
This matter comes before the Court on review of defendant
Apax Partners LLP’s Motion to Dismiss Fifth Amended Complaint (Doc.
#87) filed on April 21, 2021, and Apax Co-CEOs Andrew Sillitoe and
Mitch Truwit's Motion to Dismiss Fifth Amended Complaint (Doc.
#93) filed on May 14, 2021. Plaintiff was provided two chances to
file a response. (Docs. ## 94, 96.) On July 1, 2021, plaintiff
filed an Amended Successive Motion in Opposition (Doc. #97).
Defendants seeks relief under Fed. R. Civ. P. 12(b)(2) for lack of
personal jurisdiction and 12(b)(6) for failure to state a claim.
For the reasons stated below, the motions are due to be granted.
I.
On March 16, 2021, the Court issued an Opinion and Order (Doc.
#82) finding that the Fourth Amended Complaint did not establish

personal jurisdiction because plaintiff had failed to allege
sufficient facts to make out a prima facie case of jurisdiction as
to Apax. Apax was only named in Count X for a violation of Florida
law in the Fourth Amended Complaint. Plaintiff was provided an
opportunity to amend as to Apax only. Defendants Sillitoe and
Truwit were not named as defendants in the Fourth Amended
Complaint. On April 7, 2021, plaintiff filed a Fifth Amended
Complaint (Doc. #84) adding Sillitoe and Truwit as defendants
without leave of Court and after the October 16, 2020 deadline to
amend pleadings.
Defendant Apax alleges that the Fifth Amended Complaint (Doc.
#84) repeats the same insufficient allegations regarding personal
1
jurisdiction, with only two substantive paragraphs added to the

1
The identified paragraphs are:
It is public knowledge that APAX PARTNERS LLP
as investor/owner, advised funds for the
purchase of 3M Electronic Monitoring with the
name changed to ATTENTI. See
https://pestakeholder.org/continuing-
incarceration-apax-partners-digital-
shackles/. (FAC ¶ 7).
It is public knowledge that US Senator
Elizabeth Warren and Members of the US House
of Representatives Alexandria Ocasio-Cortez
and Mark Pocan have targeted APAX for
document. (Doc. #87, p. 4.) Defendants Sillitoe and Truwit
2
believe two counts are directed as to them, Count IX and Count X.
Defendants Sillitoe and Truwit seek dismissal because they were
added as new parties long after the deadline to add new parties,
they are not subject to personal jurisdiction in Florida, the
claims are barred by res judicata and the statute of limitations,
and plaintiff fails to state a claim. (Doc. #93, p. 4.)
Regarding personal jurisdiction, plaintiff argues that the
Co-CEOs are liable for personal jurisdiction for the same reasons
that Apax is liable, but that without discovery ownership cannot
be determined. (Doc. #97, p. 9.) The remaining arguments center
on the substantive issues.
II.
In the Fifth Amended Complaint, plaintiff alleges that Apax

is a British equity firm, headquartered in London, England, and
that the company also operates out of Tel Aviv. Plaintiff alleges
that Apax is authorized to do business in New York, and that Apax

investing in and acquiring ATTENTI Electronic
Monitoring in their war on private equity
firms profiting from incarceration and
detention. See
https://www.warren.senate.gov/imo/media/doc/
2019-09-30%20Letters
%20to%20PE%20Firms%20re%20Prison%20Services.
pdf. (FAC ¶ 8).
2
The Court notes that the Fifth Amended complaint refers to
defendants collectively in every count.
is within reach of Florida’s long-arm statute. (Doc. #84, ¶ 2.)
Sillitoe is a CEO, partner of Apax, and citizen of England. Truwit
is the other CEO and a citizen of England. (Id., ¶¶ 3-4.)

Plaintiff alleges that Apax was an “investor/owner, advised funds
for the purchase of 3M Electronic Monitoring with the name changed
to Attenti.” (Id., ¶ 7.) Plaintiff alleges that Members of
Congress have targeted Apax for investing in and acquiring Attenti.
(Id., ¶ 8.)
Plaintiff alleges that defendants Apax and co-conspirators 3M
and Roman are an association-in-fact enterprise engaged in a
pattern of conspiracy and criminal activities and/or racketeering
activities and in violation of Florida’s Deceptive and Unfair Trade
Practices Act. (Id., ¶¶ 10-12.) Plaintiff alleges that while he
was on State probation from June 4, 2008 to June 4, 2013, the
equipment he was wearing repeatedly malfunctioned. Plaintiff

alleges that the malfunctions caused him to be arrested on seven
occasions for violations of probation. (Id., ¶ 23.) Plaintiff
alleges that the defect was not known to the courts or law
enforcement and was concealed by defendants. (Id., ¶ 27.)
Plaintiff alleges that instead of fixing or replacing the
defective equipment, 3M sold the company to Apax and renamed it to
Attenti. (Id., ¶ 45.) Plaintiff alleges this sale was a
fraudulent transfer as he was a “potential Judgement Creditor at
the time.” (Id., ¶ 46.) Plaintiff alleges that Apax and Attenti
are partners in ownership, and as co-conspirators with 3M and Roman
and Attenti, defendants used deceptive practices to mislead
consumers. (Id., ¶¶ 48, 50.) Plaintiff alleges that Truwit and

Sillitoe, and other unnamed employees, failed to provide proper
oversight of Apax but they managed and conducted the affairs of
the enterprise and aided and abetted the conduct of Apax employees
to conceal and cover up criminal and/or racketeering. (Id., ¶¶
51, 56.) Plaintiff alleges that defendants have had detailed
reports and evidence since 2008 that would have excluded plaintiff
as to the probation violations, but it was withheld from counsel
and the courts. (Id., ¶ 61.)
In Count I, plaintiff alleges design defects in Apax’s
equipment. Plaintiff argues that “defendants” knew of the
defective condition and design posing a serious risk to the wearer.
In Count II, plaintiff argues intentional infliction of emotional

distress because defendants knew about the defectiveness of the
monitoring equipment but did not relay the information to the State
of Florida or plaintiff. In Count III, plaintiff alleges negligent
infliction of emotional distress because plaintiff wore electronic
monitoring equipment on his ankle that had an impact on him. Count
IV alleges fraudulent misrepresentation, and Count V alleges
fraudulent concealment. In Count VI, plaintiff alleges negligent
misrepresentation because defendants were aware the testing
procedures were flawed. In Count VII, plaintiff alleges fraud and
deceit due to defendants’ unlawful, improper testing and blatant
distribution of false information which over states the location
finding ability of the monitoring equipment. In Count VIII,

plaintiff alleges that defendants committed gross negligence and
argues for punitive damages. Count IX alleges a RICO violation
under both state and federal law. Count X alleges a violation of
Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA). Count
XI simply seeks exemplary damages and Count XII alleges unjust
enrichment.
All defendants note that the find-and-replace nature of the
Fifth Amended Complaint leads to inconsistencies. Apax argues:
Despite clearly articulating in all 5 prior
complaints that Apax’s limited role was as a
private equity firm allegedly involved in the
purchase of 3M EM in 2017, with his find-and-
replace scheme Plaintiff is now suddenly
alleging that Apax (and not Attenti):
manufactured the electronic monitoring
equipment Plaintiff wore while on probation
from 2008 to 2013; had contracts with the
Florida Department of Corrections for the past
20 years; was somehow involved in hiding
exculpatory evidence at Plaintiff’s violation
of probation hearings from 2008 to 2013;
provided company employees/experts to testify
at these hearings from 2008 to 2013; and its
CEOs (or employees under their watch)
concealed exculpatory evidence and/or
evidence of product defects at these hearings,
and joined in a conspiracy to conceal and
further their criminal conduct so they could
maintain lucrative government contracts. FAC
¶¶ 26, 29, 35, 37, 51, 61, 65.
(Doc. #87, p. 6.) Similarly, Sillitoe and Truwit also note the
“find-and-replace scheme” issues:
Apax’s actual role (as alleged in the five
prior complaints filed in this action) is
entirely separate. Apax is a British private
equity firm headquartered in London, England.
FAC ¶ 2. Until the find-and-replace scheme in
the FAC, Plaintiff’s only substantive
allegations as to Apax were that in 2017,
while the 2016 Lawsuit was still pending, 3M
Company “sold or ‘dumped’” 3M Electronic
Monitoring (n/k/a Attenti), the defendant in
the 2016 Lawsuit, to Apax who “then renamed it
to Attent[i]”—which allegedly constituted a
fraudulent conveyance to avoid payment of a
potential judgment. See Compl. DE 1 ¶¶ 13, 18,
54, 58; Am. Compl. DE 16 ¶¶ 15, 20, 61, 65;
2nd Am. Compl. DE 24 ¶¶ 16, 21, 66, 70; 3rd
Am. Compl. DE 55 ¶¶ 18, 26, 71, 75; 4th Am.
Compl. DE 57 ¶¶ 42-47, 151-155. Indeed, Apax
was only identified in Count X for Violation
of FDUTPA based on the alleged Fraudulent
Conveyance in 2017 (more than four years after
Plaintiff last used a monitoring device in
2013 (FAC ¶ 21)). DE 82 p. 18; 4th Am. Compl.
DE 57 ¶¶ 151-55.
In contrast, none of the FAC allegations
against Sillitoe and Truwit (all of which were
previously alleged against 3M Company CEO Mike
Roman) relate to the alleged 2017 fraudulent
conveyance. Instead, because of the find-and-
replace scheme, the FAC now alleges that Apax
(and not Attenti) was the manufacturer,
seller, and monitor of the electronic
monitoring device Plaintiff used from 2008 to
2013, and that Apax’s Co-CEOs (and not 3M
Company’s) were involved in an obstruction of
justice conspiracy to suppress evidence of
product defects at Plaintiff’s VOP hearings
from 2008 to 2013, thus causing him to be
wrongfully incarcerated. FAC ¶¶ 48-65, 149,
155.
(Doc. #93, p. 3.) Considering plaintiff’s pro se status, the Court
will assume that all counts apply to all three defendants as the
allegations do not clearly identify defendants with any

distinction.
III.
When a defendant challenges the Court’s personal jurisdiction
over it, “the plaintiff bears the ultimate burden of establishing
that personal jurisdiction is present.” Oldfield v. Pueblo De
Bahia Lora, S.A., 558 F.3d 1210, 1217 (11th Cir. 2009). The Court
accepts the allegations in the complaint as true, “to the extent
that they are uncontroverted by the Defendant’s affidavits and
depositions, and must construe all reasonable inferences in favor
of the Plaintiff.” Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d
1286, 1291 (11th Cir. 2000). “Vague and conclusory allegations do
not satisfy this burden.” Catalyst Pharms., Inc. v. Fullerton,

748 F. App'x 944, 946 (11th Cir. 2018) (citing Snow v. DirecTV,
Inc., 450 F.3d 1314, 1318 (11th Cir. 2006)). Under Federal Rule
of Civil Procedure 8(a)(2), a Complaint must contain a “short and
plain statement of the claim showing that the pleader is entitled
to relief.” Fed. R. Civ. P. 8(a)(2).
When analyzing a dismissal for lack of
personal jurisdiction, “we first determine
whether the applicable statute potentially
confers jurisdiction over the defendant.”
Republic of Panama v. BCCI Holdings
(Luxembourg) S.A., 119 F.3d 935, 942 (11th
Cir. 1997). Jurisdiction over a non-resident
defendant may be based upon a federal statute
or a state long-arm statute. If a basis exists
for exercising jurisdiction, we “then
determine whether the exercise of jurisdiction
comports with due process.” Id.
Courboin v. Scott, 596 F. App'x 729, 732 (11th Cir. 2014). Under
the Florida long-arm statute,
(1)(a) A 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 any of the following acts:
1. Operating, conducting, engaging in, or
carrying on a business or business venture in
this state or having an office or agency in
this state.
2. Committing a tortious act within this
state.
3. Owning, using, possessing, or holding a
mortgage or other lien on any real property
within this state.
4. Contracting to insure a person, property,
or risk located within this state at the time
of contracting.
Fla. Stat. § 48.193(1)(a). Further, “[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.” Fla. Stat. §
48.193(2).
In order for a court to exercise specific
jurisdiction over a claim, there must be an
“affiliation between the forum and the
underlying controversy, principally, [an]
activity or an occurrence that takes place in
the forum State.” Goodyear [Dunlop Tires
Operations, S.A. v. Brown, 564 U.S. 915, 919,
131 S. Ct. 2846 (2011)] (internal quotation
marks and brackets in original omitted). When
there is no such connection, specific
jurisdiction is lacking regardless of the
extent of a defendant's unconnected activities
in the State. See id., at 931, n.6, 131 S. Ct.
2846 (“[E]ven regularly occurring sales of a
product in a State do not justify the exercise
of jurisdiction over a claim unrelated to
those sales”).
Bristol-Myers Squibb Co. v. Superior Ct. of Cal., San Francisco
Cty., 137 S. Ct. 1773, 1781, 198 L. Ed. 2d 395 (2017).
The Declaration of Simon Cresswell (Doc.#87-1, Exh. A), a
partner in Apax and general counsel, provides that he resides in
England. Mr. Cresswell states that Apax did not purchase 3M
Electronic Monitoring Company from 3M and has never owned 3M
Electronic Monitoring Company in that name or in its current name
Attenti US, Inc. In fact, Apax has never developed, manufactured,
sold or monitored electronic monitoring equipment, and has never
been in the business of providing electronic monitoring services.
Apax has no connection or ties to Florida and does not engage in
or carry out business in Florida. Mr. Cresswell asserts that Apax
has not committed any tortious acts in the State of Florida and
did not engage in solicitation or service activities in Florida
that resulted in injury to Plaintiff.
The Declaration of Mitch Truwit (Doc. #93-3, Exh. 3) provides
that Truwit is a Co-CEO of Apax, a private equity advisory firm
based in London England. Truwit works in the New York office and

resides in Connecticut. The Declaration of Andrew Sillitoe (Doc.
#93-2, Exh. 2) provides that Sillitoe is also a Co-CEO of Apax but
he works out of the London office and resides in London, England.
Neither defendant has ever resided in Florida, owned or leased
property in Florida, maintained any records in Florida, owned a
business registered with the Florida Department of State, and have
never filed suit or been sued in the State of Florida before this
suit was filed. Neither have ever attended any meeting of 3M or
Attenti.
Setting aside the issue of plaintiff adding counts as to Apax
that were not present in the previous pleading, and the issue of
adding new parties after the deadline to do so, the Court finds

that the motion should be granted because the allegations are
insufficient to support personal jurisdiction. “Legal conclusions
without adequate factual support are entitled to no assumption of
truth.” Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011)
(citations omitted). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Even if read in a light most favorable to plaintiff, the
Declarations contradict the vague and conclusory allegations in
the Fifth Amended Complaint. Plaintiff alleges a conspiracy
regarding defective equipment, and the failure to disclose known
defects to the electronic monitoring equipment that were

concealed. The Declarations clearly state that none of the three
defendants have any affiliation with Florida. Apax denies being
in the business of electronic monitoring equipment altogether and
without some nexus between the offending electronic monitoring
equipment and Apax, there can be no personal jurisdiction over
this defendant or its CEOs. The allegations that Apax was an
“investor/owner” and that 3M sold the company to Apax do not
constitute sufficient allegations of a “business or business
venture”, a tortious act, or anything more than an isolated
activity. See Edwards v. Airline Support Group, Inc., 138 So. 3d
1209, 1212 (Fla. 4th DCA 2014) (Noting “that the majority of courts
nationwide have found a fraudulent transfer does not constitute a

tortious act for purposes of Florida's long-arm statute.”).
IV.
Count X alleges a violation of Florida’s Uniform Fraudulent
Transfers Act (FUFTA) and Florida’s Deceptive and Unfair Trade
Practices Act (FDUTPA). Count X was the only count against Apax
in the Fourth Amended Complaint, and therefore will be the only
count considered in the Fifth Amended Complaint.
“In order to state a FDUTPA claim, a plaintiff ‘must allege
(1) a deceptive act or unfair trade practice; (2) causation; and
(3) actual damages.’ Dolphin LLC v. WCI Communities, Inc., 715
F.3d 1243, 1250 (11th Cir. 2013).” State Farm Mut. Auto. Ins. Co.
v. Performance Orthopaedics & Neurosurgery, LLC, 278 F. Supp. 3d

1307, 1326 (S.D. Fla. 2017). A deceptive or unfair trade practice
may be shown by per se violation or a traditional violation. Id.
Plaintiff alleges a violation of Fla. Stat. § 726.105 and 11 U.S.C.
§ 548 for a fraudulent transfer.
The federal statute, Section 548, is part of the Bankruptcy
Code and by its plain language only applies to fraudulent transfers
that may be avoided by a U.S. Trustee. 11 U.S.C. § 548(a)(1) (“The
trustee may avoid any transfer....”). The state law counterpart,
Section 726.105, falls under the Florida Uniform Fraudulent
Transfer Act (FUFTA) and “allows creditors to set aside a debtor's
transfer of assets to a third party under certain circumstances.”
Arlan Asset Mgmt., LLC v. A.F.A.B. Contractors, Inc., No.

3:17CV775-MCR/EMT, 2018 WL 6720412, at *4 (N.D. Fla. June 1, 2018).
This is not a creditor-debtor relationship and neither statute may
be used as a predicate offense under the FDUTPA.
A FDUTPA claim does not necessarily require the violation of
a predicate statute. “To establish a traditional FDUTPA violation,
plaintiff must show defendants engaged in “[u]nfair methods of
competition, unconscionable acts or practices, and unfair or
deceptive acts or practices in the conduct of any trade or
commerce.” State Farm, 315 F. Supp. 3d at 1300 (citations
omitted). Plaintiff must also demonstrate causation and actual
damages. Feheley v. LAI Games Sales, Inc., No. 08-23060-CIV, 2009
WL 2474061, at *5 (S.D. Fla. Aug. 11, 2009) (citing Rollins, Inc.

v. Butland, 951 So. 2d 860, 869 (Fla. 2d DCA 2006)).
“To satisfy the first element, the plaintiff must show that
“the alleged practice was likely to deceive a consumer acting
reasonably in the same circumstances.” Carriuolo v. Gen. Motors
Co., 823 F.3d 977, 983–84 (11th Cir. 2016) (quoting State, Office
of Attorney Gen., Dep’t of Legal Affairs v. Commerce Com. Leasing,
LLC, 946 So. 2d 1253, 1258 (Fla. 1st DCA 2007)). Plaintiff alleges
that Apax was an investor/owner that “advised funds for the
purchase of 3M”. (Doc. #84, ¶ 7.) Plaintiff generally alleges
unfair trade practices by Apax as part of a conspiracy with the
dismissed defendants for “financial gain and expansion of Attenti
Electronic Monitoring” as racketeering activity. (Id., ¶ 155.)

Plaintiff alleges that he was injured in his business and property
in the form of lost compensation and emotional harm as a “direct
result” of the predicate acts. (Id., ¶ 157.) The vague
allegations of a conspiracy for financial gain do not show how a
consumer would be deceived by an investor, nor how an investment
would directly harm plaintiff “in his business”. The Fifth Amended
Complaint will be dismissed.
Accordingly, it is now
ORDERED:
1. Defendant Apax Partners LLP’s Motion to Dismiss Fifth
Amended Complaint (Doc. #87) is GRANTED and defendant is
dismissed with prejudice.
2. Defendant’s Apax Co-CEOs Andrew Sillitoe and Mitch Truwit's
Motion to Dismiss Fifth Amended Complaint (Doc. #93) is
GRANTED and the defendants are dismissed with prejudice.
3. The Clerk shall enter judgment accordingly, terminate all
pending motions and deadlines as moot, and close the file.
DONE AND ORDERED at Fort Myers, Florida, this 10th day of
August 2021.

\ Pome Ap p
E. STEELE
SHNIOR UNITED STATES DISTRICT JUDGE

Copies:
Parties of record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10108128. Public record. Not legal advice.