The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ELEVATION REPS OF THE
ROCKIES, INC., a Colorado
Corporation
Plaintiff,
v. Case No: 2:22-cv-279-JLB-KCD
ELEVATE FOODSERVICE
GROUP, LLC, and MITCHELL
MARCOTTE,
Defendants.
/
ORDER1
Elevation Reps of the Rockies, Inc. (“Elevation”) alleges Elevate Foodservice
Group, LLC (“EFG”) and Mitchell Marcotte, EFG’s manager and owner, have
committed trademark infringement. (Doc. 1.) Mr. Marcotte, an individual
Defendant who lives in Massachusetts, argues the Court lacks personal jurisdiction
over him, and he moves the Court to dismiss the claims against him under Federal
Rule of Civil Procedure 12(b)(2). (Doc. 24.) The Court disagrees with Mr. Marcotte
and DENIES his motion.
1 Documents hyperlinked to CM/ECF are subject to PACER fees. By using
hyperlinks, the Court does not endorse, recommend, approve, or guarantee any
third parties or the services or products they provide, nor does it have any
agreements with them. The Court is also not responsible for a hyperlink’s
availability and functionality, and a failed hyperlink does not affect this Order.
BACKGROUND
Elevation and EFG offer “the identical services of representing
manufacturers in the field of commercial foodservice equipment and supplies.”
(Doc. 1 at 1–2.) Mr. Marcotte, a Massachusetts resident, is EFG’s manager and
owner. (Doc. 1 at 2; Doc. 33 at 5.)
Elevation has grown its business to a client base of at least 64 manufacturers
using its word mark “Elevation Foodservice Reps,” the related marks “Elevation
Reps” and “Elevation,” and its Elevation Food Reps Logo (collectively, the
“Elevation Marks”) from as early as January 2010. (Doc. 1 at 3–4.)
Mr. Marcotte founded EFG in 2020 and operates using the mark and
tradenames, “Elevate Foodservice Group” and “Elevate FSG,” along with a logo
(collectively, the “EFG Marks”) that Elevation alleges are confusingly similar to its
own. (Doc. 1 at 5.) On October 17, 2020, Defendants registered the domain name
elevatefsg.com (the “EFG Website”). (Doc. 1 at 5.) Using its marks and website,
EFG provides, markets, advertises, promotes, offers for sale, and sells its services
through online marketing, Facebook, Twitter, Instagram, and Pinterest. (Doc. 1 at
6.)
Elevation alleges EFG’s acts have caused and are likely to continue to cause
the relevant consuming public to have the mistaken belief that EFG’s services
originate from, are associated with, or are otherwise authorized by Elevation. (Doc.
1 at 6.) By a cease-and-desist letter, Elevation objected to EFG’s use of the EFG
Marks. (Doc. 1 at 6–7.) But Elevation alleges EFG not only disregarded the
demands set out in that letter, but also accelerated its infringement of the Elevation
Marks. (Doc. 1 at 7.)
Elevation further alleges EFG willfully and deliberately intends to trade on
the goodwill of the Elevation Marks and to cause confusion and deception in the
marketplace by misleading the consuming public. (Doc. 1 at 7.) Elevation alleges
EFG has willfully misled the consuming public into believing there is an association
between the two companies and their services, used a false designation of origin
with EFG’s services, and unfairly profited from these activities. (Doc. 1 at 7.)
Most of EFG’s alleged misdeeds in this jurisdiction center on its involvement
in the Manufacturers’ Agents Association for the Foodservice Industry (“MAFSI”)
conference in Naples, Florida in 2022. (See Doc. 1 at 7–8.) MAFSI is a trade
association comprised of around 470 commercial foodservice equipment
representatives and manufacturer clients. (Doc. 1 at 7–8.) Elevation has been a
MAFSI member since at least 2010. (Doc. 1 at 8.) EFG joined the organization in
2020, but Mr. Marcotte became a MAFSI board member in 2015, while he was a
principle of GMV Sales Associates, another foodservice company. (Doc. 1 at 8.)
Elevation alleges that Mr. Marcotte knew about Elevation and the Elevation Marks,
given his position in the industry and on MAFSI’s board. (Doc. 1 at 8.)
Mr. Marcotte’s MAFSI directorship is touted on the EFG website, and the
company enjoys added exposure because of Mr. Marcotte’s position in MAFSI. (Doc.
1 at 8–9.) Besides his directorship, Mr. Marcotte was chair of the 2022 MAFSI
conference, and EFG was a named sponsor. (Doc. 1 at 9.) So despite Elevation’s
cease-and-desist letter, the EFG Marks were prominently featured at the
conference, including convention space signage, golf course signage, the conference’s
mobile app, the MAFSI website, ribbons attached to attendee name badges, and on
presentation screens. (Doc. 1 at 9.) And regarding Mr. Marcotte personally,
Elevation alleges he became chair of the MAFSI conference and arranged EFG’s
sponsorship, which entitled EFG to prominent and pervasive signage; he directed
the display of the EFG Marks throughout the MAFSI conference; and as a MAFSI
director and the conference chair, Mr. Marcotte gave presentations tied to the EFG
Marks. (See Doc. 1 at 9–10.)
What’s more, Elevation alleges it could not attend the 2022 MAFSI
conference because the waiver it had to sign to participate—waiving any and all
claims of whatever kind or nature against (among others) MAFSI sponsors and
directors—would compromise its ability to assert its rights vis-à-vis EFG’s Marks
and actions. (Doc. 1 at 10; Doc. 1-10.) As such, Elevation contends it could not raise
or maintain its own brand awareness or otherwise benefit from the conference.
(Doc. 1 at 10.) And control over the rules and regulations of the conference (of
which the liability waiver was one example), Elevation alleges, was another benefit
of Mr. Marcotte’s positions as MAFSI director and 2022 MAFSI conference chair.
(See Doc. 1 at 10.)
Elevation alleges the EFG Marks and the added exposure EFG garnered
from the 2022 MAFSI conference have caused actual confusion in the marketplace.
(Doc. 1 at 11.) Elevation cites three times that other entities in the food service
industry noted the confusion caused by EFG’s conduct and marks, or actually
confused the two companies. (Doc. 1 at 11.)
Against this backdrop, Elevation has sued EFG and Mr. Marcotte on five
theories: trademark infringement under Section 32(1)2 of the Lanham Act (Count I);
unfair competition under Section 43(a)3 of the Lanham Act (Count II); violating
Florida’s Deceptive and Unfair Trade Practices Act4 (“FDUTPA”) (Count III);
trademark infringement (Count IV); and unjust enrichment (Count V). (See Doc. 1.)
EFG has answered (Doc. 23), but Mr. Marcotte moves for dismissal for lack of
personal jurisdiction (Doc. 24.) The parties have fully briefed the issues. (Doc. 32;
Doc. 37; Doc. 40.)
LEGAL STANDARD
When considering a motion to dismiss for lack of personal jurisdiction, courts
“accept factual allegations in the complaint as true to the extent that they are
uncontested and, in cases of conflict, construe all reasonable inferences in the
plaintiffs’ favor.” Fraser v. Smith, 594 F.3d 842, 846 (11th Cir. 2010). When “the
defendant challenges jurisdiction by submitting affidavit evidence in support of its
position, the burden traditionally shifts back to the plaintiff to produce evidence
supporting jurisdiction.” United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th
Cir. 2009) (internal quotation marks and citations omitted).
2 15 U.S.C. § 1114(1).
3 15 U.S.C. § 1125(a).
4 Fla. Stat. § 501.204.
DISCUSSION5
Determining whether a court may exercise personal jurisdiction over a non-
resident defendant involves a two-part inquiry. Sculptchair, Inc. v. Century Arts,
Ltd., 94 F.3d 623, 626–32 (11th Cir. 1996). First, the court must determine whether
the state’s long-arm statute confers jurisdiction over the defendant. Id. at 626–27.
Next, the court must determine whether exercising jurisdiction satisfies due process
under the Fourteenth Amendment. Id. at 630–32.
The reach of Florida’s long-arm statute is a question of Florida state law, and
this Court must adhere to decisions of the Florida Supreme Court and Florida’s
District Courts of Appeal. Id. at 627. But if the Florida Supreme Court is silent
and Florida’s District Courts of Appeal are split, this Court may defer to the
Eleventh Circuit’s view. See Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1216–17
(11th Cir. 1999).
Due process requires a non-resident defendant to have “certain minimum
contacts” with the forum state, “such that the maintenance of the suit does not
offend traditional notions of fair play and substantial justice.” Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945) (internal quotation marks and citation
omitted). “[F]ederal courts are duty bound to avoid a constitutional question if
5 Mr. Marcotte submitted a declaration in support of his motion to dismiss (Doc. 24-
1), but the declaration was neither dated nor signed, which does not meet the
requirements of 28 U.S.C. § 1746. Mr. Marcotte corrected this deficiency by filing an
amended declaration that was signed and dated. (Doc. 33 at 4–6.) In any event, the
declarations do not contradict Elevation’s allegations about Mr. Marcotte’s actions
leading up to and during the MAFSI conference.
answering the question is unnecessary to the adjudication of the claims at hand.”
PVC Windoors, Inc. v. Babbitbay Beach Const., N.V., 598 F.3d 802, 807 (11th Cir.
2010).
Accordingly, the Court will begin its jurisdictional analysis with application
of Florida’s long-arm statute to Mr. Marcotte.
Florida’s Long-Arm Statute
Mr. Marcotte argues he “simply . . . attend[ed] the 2022 MAFSI Conference in
Naples, Florida,” which cannot by itself establish his minimum contact with
Florida. (Doc. 24 at 4.) Elevation responds that Mr. Marcotte’s tortious actions
related to the 2022 MAFSI conference are directly connected to Florida and
establish specific jurisdiction. (Doc. 32 at 4–7.)
Florida’s long-arm statute provides for both specific and general jurisdiction.
Guarino v. Mandel, 327 So. 3d 853, 861 (Fla. 4th DCA 2021). “Specific jurisdiction
requires a showing that the alleged activities or actions of the defendant are
directly connected to the forum state.” Id. (citation and internal quotation marks
omitted). “General jurisdiction, on the other hand, requires a showing that the
defendant’s connections with the forum state are so substantial that it is
unnecessary to establish a relationship between this state and the alleged wrongful
actions.” Id. (citations and internal quotation marks omitted).
Mr. Marcotte argues he is not subject to this Court’s specific jurisdiction6
because he does not conduct business in Florida, does not own Florida real estate,
has not availed himself of the privilege of Florida’s laws, and has not acted
tortiously in Florida. (Doc. 24.) Elevation disagrees and contends this Court may
exercise specific jurisdiction over Mr. Marcotte because he committed a tortious act
in Florida, which caused Elevation to suffer harm in Florida. (Doc. 32.)
The portion of Florida’s long-arm statute relevant to that analysis provides:
(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 ... to the jurisdiction of the courts of this
state for any cause of action arising from any of the
following acts:
...
2. Committing a tortious act within this state.
Fla. Stat. § 48.193(1)(a)(2).
First, the Court must determine whether the long-arm statute applies. “[A]
motion to dismiss a tort claim for lack of personal jurisdiction under Florida’s Long-
Arm Statute does not require a full-scale inquiry into whether the defendant
committed a tort.” Brennan v. Roman Cath. Diocese of Syracuse N.Y., Inc., 322 F.
App’x 852, 855 (11th Cir. 2009). But the Court must determine whether Elevation’s
claims arose from Mr. Marcotte committing a tortious act within Florida. See Louis
Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1353 (11th Cir. 2013).
6 Mr. Marcotte argues he is not subject to general jurisdiction or specific
jurisdiction. But because Elevation’s response addresses only specific jurisdiction,
the Court will focus its analysis on specific jurisdiction, too.
As a jumping-off point, the Eleventh Circuit has concluded trademark claims
allege “tortious acts” for Florida’s long-arm statute. See id. (citing Licciardello v.
Lovelady, 544 F.3d 1280, 1283–84 (11th Cir.2008)). So Elevation must demonstrate
that Mr. Marcotte “committed a substantial aspect of the alleged tort in Florida” by
establishing that his activities in Florida were essential to the success of the tort.
See Williams Elec. Co. v. Honeywell, Inc., 854 F.2d 389, 394 (11th Cir. 1988)
(quoting Watts v. Haun, 393 So. 2d 54, 56 (Fla. 2d DCA 1981)).
Elevation alleges that Mr. Marcotte took several actions to promote the EFG
Marks at the MAFSI conference in Naples, Florida. (Doc. 32 at 2–3 (citing Doc. 1 at
7–10).) Elevation specifically alleges Mr. Marcotte infringed on the Elevation
Marks, engaged in unfair competition, committed deceptive and unfair trade
practices, and was unjustly enriched by (1) using his position as MAFSI director
and conference chair to arrange EFG’s sponsorship; (2) directing the display of the
EFG Marks in prominent and pervasive sponsorship signage; (3) giving
presentations tied to the EFG Marks; and (4) controlling the conference rules and
regulations, including the liability waiver Elevation claims prevented its own
participation at the conference. (Doc. 1 at 7–10.)
At this stage of the proceedings, the Court need not determine whether
Elevation’s claims amount to trademark infringement, unfair competition, or
deceptive acts. Its task is simply to determine whether Elevation has satisfied
Florida’s long arm statute, and in that analysis, it accepts the complaint’s
allegations as true and evaluates the inferences derived from the allegations in the
light most favorable to Elevation. See Fraser, 594 F.3d at 846.
Stated plainly, Elevation alleges that Mr. Marcotte used his influence with
MAFSI to promote the EFG Marks—which Elevation maintains are infringing and
benefit EFG in terms of associative branding, goodwill, and promotion—at the 2022
MAFSI Conference in Naples, Florida. The Court concludes § 48.193(1)(a)(2)
permits specific jurisdiction over Elevation’s claims.
Due Process
Having found Florida’s long-arm statute applies to Mr. Marcotte, the Court
now turns its attention to “whether the exercise of jurisdiction comports with due
process” under the Fourteenth Amendment. SEC v. Marin, 982 F.3d 1341, 1349
(11th Cir. 2020). Under the Due Process Clause, the defendant’s contacts with the
forum state must be such that “maintenance of the suit” in that forum “does not
offend traditional notions of fair play and substantial justice.” Int’l Shoe, 326 U.S.
at 316–17 (citations and quotation marks omitted). “[T]he defendant’s relationship
to the forum State” is the main focus of this inquiry. Bristol-Myers Squibb Co. v.
Super. Ct. of Cal., — U.S. —, 137 S. Ct. 1773, 1779, 198 L.Ed.2d 395 (2017).
To determine whether exercising specific personal jurisdiction is appropriate
under the due process clause, courts examine:
(1) whether the plaintiff’s claims “arise out of or relate to”
at least one of the defendant’s contacts with the forum; (2)
whether the nonresident defendant “purposefully availed”
himself of the privilege of conducting activities within the
forum state, thus invoking the benefit of the forum state’s
laws; and (3) whether the exercise of personal jurisdiction
comports with “traditional notions of fair play and
substantial justice.”
Louis Vuitton, 736 F.3d at 1355 (citations omitted). “The plaintiff bears the burden
of establishing the first two prongs, and if the plaintiff does so, a defendant must
make a compelling case that the exercise of jurisdiction would violate traditional
notions of fair play and substantial justice.” Id. (citation and internal quotation
marks omitted).
1. “Arising Out of” or Relatedness
First, the Court considers whether Elevation’s claims “arise out of or relate to
[Mr. Marcotte’s] contacts with the forum.” See Bristol-Myers, 137 S. Ct. at 1780
(alterations and quotation marks omitted). The Court’s inquiry focuses “on the
direct causal relationship between the defendant, the forum, and the litigation.”
Louis Vuitton, 736 F.3d at 1355–56 (citation and quotation marks omitted).
Elevation bases many of its allegations on Mr. Marcotte’s conduct at the 2022
MAFSI conference in Naples, Florida. And that allegedly tortious conduct
comprises many of Elevation’s claims against EFG and Mr. Marcotte. Because this
controversy arises out of Mr. Marcotte’s allegedly tortious conduct at the MAFSI
conference, there is a direct relationship among Mr. Marcotte, Florida, and this
litigation.
2. Purposeful Availment
Second, the Court considers whether Mr. Marcotte has taken some act by
which he purposely availed himself of the privilege of conducting activities within
Florida.
There are two tests available to determine whether purposeful availment
exists when intentional torts are alleged: the “effects test” set forth in Calder v.
Jones,7 and the traditional minimum contacts test. Id. at 1356. Under the “effects
test,” courts consider whether the tort (1) was intentional; (2) was aimed at the
forum state; and (3) caused harm that the defendant should have anticipated the
plaintiff would suffer in the forum state. Id. (quoting Lovelady, 544 F.3d at 1285–
88).
Elevation’s complaint alleges that, through his involvement in the MAFSI
conference and its planning, Mr. Marcotte acted in an intentional and tortious
manner regarding the EFG Marks. His actions were directly aimed at Florida, the
venue, and the conference’s participants. And because his actions allegedly
prevented Elevation from participating in (and directly impeded its business
engagement at) the MAFSI conference, he should have anticipated his actions
would harm Elevation in Florida. This satisfies the “effects test” for purposeful
availment.
But the traditional minimum contacts test is also satisfied. Under the
minimum contacts test, the court considers the nonresident defendant’s contacts
with the forum state and determines whether those contacts: “(1) are related to the
plaintiff’s cause of action; (2) involve some act by which the defendant purposefully
availed itself of the privileges of doing business within the forum; and (3) are such
7 465 U.S. 783 (1984).
that the defendant should reasonably anticipate being haled into court in the
forum.” Id. at 1357 (citation omitted).
Mr. Marcotte’s actions within Florida directly relate to Elevation’s causes of
action. He purposefully availed himself of the privileges of doing business in
Florida through his actions leading up to and during the MAFSI conference.
Elevation alleges Mr. Marcotte promoted EFG through conference sponsorship
signage and advanced EFG’s brand awareness through his MAFSI directorship and
conference chair responsibilities and opportunities. These actions occurred in
Florida, were directed to conference attendees in Florida, and allegedly harmed
Elevation within Florida by preventing Elevation’s own participation at the
conference and creating downstream confusion in the marketplace. Mr. Marcotte’s
contacts with Florida are such that he should reasonably anticipate being hailed
into a Florida court.
The Court concludes that purposeful availment is satisfied twice over.
3. Traditional Notions of Fair Play and Substantial Justice
And finally, the Court will consider several factors to determine whether
exercising personal jurisdiction over Mr. Marcotte is in line with traditional notions
of fair play and substantial justice, including: (1) the burden on Mr. Marcotte in
defending the lawsuit; (2) Florida’s interest in adjudicating the dispute; (3)
Elevation’s interest in obtaining convenient and effective relief; and (4) the judicial
system’s interest in resolving the dispute. See id. at 1358.
Mr. Marcotte argues the traditional notions of fair play and substantial
justice do not support this Court’s exercise of jurisdiction over him. The Court
disagrees.
Foremost in the Court’s analysis is the fact that EFG has answered
Elevation’s complaint. This means that both Elevation and Mr. Marcotte’s company
will prosecute all of Elevation’s claims in this forum, and to require Elevation to
duplicate its efforts elsewhere against Mr. Marcotte would be a tremendous waste
of resources for all parties and the judiciary. Extending this to the considerations of
fair play and substantial justice, the burden on Mr. Marcotte in defending this case,
Elevation’s interest in obtaining convenient and effective relief, and the efficient
resolution of this controversy all point to having this dispute tried in Florida. And
the remaining considerations do not outweigh this reality.
The Court’s exercise of jurisdiction over Mr. Marcotte satisfies Due Process
considerations.
CONCLUSION
Elevation’s complaint states allegations sufficient to satisfy Florida’s long-
arm statute regarding Mr. Marcotte, and the Court concludes its exercise of
personal jurisdiction over Mr. Marcotte satisfies due process considerations.
Accordingly, it is ORDERED that Defendant, Mitchell Marcotte’s Motion to
Dismiss for Lack of Personal Jurisdiction (Doc. 24) is DENIED.
DONE and ORDERED in Fort Myers, Florida on November 14, 2022.
JOHN L. BADALAMENTI
UNITED STATES DISTRICT JUDGE
Copies: All Parties of Record