Duran v. Joekel

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

REYNALDO DURAN and RONALD

HARDY, on behalf of

themselves and all others

similarly situated,

Plaintiff,

v. Case No: 2:23-cv-558-JES-NPM

KENNETH JOEKEL, an

individual, MARC PLOTKIN, an

individual, PACESETTER

PERSONNEL SERVICE, INC., A

Texas profit corporation,

PACESETTER PERSONNEL SERVICE

OF FLORIDA, INC., A Florida

profit corporation, FLORIDA

STAFFING SERVICE, INC., A

Florida profit corporation,

and TAMPA SERVICE COMPANY,

INC., A Florida profit

corporation,

Defendants.

OPINION AND ORDER

This matter comes before the Court on Kenneth Joekel and Marc

Plotkin’s Motion to Dismiss (Doc. #60) for lack of personal

jurisdiction, filed on February 16, 2024. Plaintiffs filed a

Memorandum in Opposition (Doc. #63) on March 1, 2024. Defendants’

Notice of Supplemental Authority (Doc. #67) was filed on April 1,

2024. For the reasons set forth below, the motion is granted, and

defendants Kenneth Joekel and Marc Plotkin are dismissed without

prejudice.

I. Amended Complaint

The Class Action Complaint (Doc. #7) was removed from state

court pursuant to the diversity jurisdiction provisions of the

Class Action Fairness Act, 28 U.S.C. § 1332(d). (See Doc. #1, ¶¶

7-17.) On January 23, 2024, an Amended Class Action Complaint

(the Amended Complaint) (Doc. #54) was filed on behalf of

plaintiffs Reynaldo Duran (Duran) and Ronald Hardy (Hardy)

(collectively plaintiffs) and similarly situated unskilled general

laborers or day laborers employed by defendants’ labor halls

throughout the State of Florida since January 29, 2016. (Id. at

¶ 5.)

Defendant Pacesetter Personnel Service, Inc. (Pacesetter) is

a Texas corporation headquartered in Texas; defendant Pacesetter

Personnel Service of Florida, Inc. (Pacesetter Florida) is a

Florida corporation also headquartered in Texas; defendant Florida

Staffing Service, Inc. (Florida Staffing) is a Florida corporation

headquartered in Texas; and defendant Tampa Service Company, Inc.

(Tampa Service) is a Florida corporation headquartered in Texas

(collectively the Corporate Defendants). Defendant Pacesetter,

through its various corporate entities, is a personnel staffing or

“temporary labor” company operating labor pools out of labor halls

employing general unskilled laborers and deploying them for work

at third-party clients. Defendant Kenneth Joekel (Joekel) is the

individual who owns 100% of all the Corporate Defendants, and

defendant Marc Plotkin (Plotkin)1 is an individual who oversees

the day-to-day management and operation of the Corporate

Defendants (collectively the Individual Defendants).

The Amended Complaint sets forth three counts. In Count I,

plaintiffs allege that all defendants violated the Florida Labor

Pool Act of 1995 (FLPA) in Florida during the relevant time period

by routinely overcharging workers for transportation to and from

job sites. (Doc. #54, ¶¶ 142-151.) In Count II, plaintiffs allege

that all defendants violated the FLPA in Florida during the

relevant time period by routinely charging workers for the

temporary use of safety equipment, clothing, accessories, and

other items required by the nature of the work either by law,

custom, or as a requirement of the third-party user. (Id. at ¶¶

152-160.) In Count III, plaintiffs allege that all defendants

breached an Employment Agreement in which Pacesetter agreed it

1

Plaintiffs identify Plotkin as “Marc Plotkin” in their case

caption but as “David Plotkin” elsewhere. (Compare Doc. #54, p.

1, with Doc. #54, ¶ 35.) Given that the Individual Defendants

only acknowledge a “Marc Plotkin” (Doc. #60, p. 1 n.1), and the

“Corporate Defendants are without knowledge of an individual named

‘David Plotkin’”, (Doc. #62, ¶ 76), the Court assumes “David”

Plotkin is a scrivener’s error.

would only charge plaintiffs for transportation to and from

jobsites if the worker requested transportation and agreed to share

the cost of transportation. (Id. at ¶¶ 161-171.)

II. Personal Jurisdiction Principles

The two Individual Defendants seek to dismiss the Amended

Complaint for lack of personal jurisdiction. Without personal

jurisdiction, a district court is powerless to take action or to

adjudicate a case. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,

584 (1999); Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1214

n.6 (11th Cir. 1999). Whether personal jurisdiction exists is a

question of law for the Court. Diamond Crystal Brands, Inc. v.

Food Movers Int'l, Inc., 593 F.3d 1249, 1257 (11th Cir. 2010)

(citing Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210,

1217 (11th Cir. 2009)). “Federal courts ordinarily follow state

law in determining the bounds of their jurisdiction over persons.”

Daimler AG v. Bauman, 571 U.S. 117, 125 (2014).

For a court to exercise personal jurisdiction over a

nonresident defendant, there must be: (1) a basis for asserting

personal jurisdiction under the forum-state’s long-arm statute;

and, if there is, (2) sufficient minimum contacts to satisfy the

federal Due Process Clause. SkyHop Techs., Inc. v. Narra, 58 F.4th

1211, 1222 (11th Cir. 2023); Sculptchair, Inc. v. Century Arts,

Ltd., 94 F.3d 623, 626 (11th Cir. 1996) (same); Madara v. Hall,

916 F.2d 1510, 1514 (11th Cir. 1990) (same). “Simultaneously, the

Fourteenth Amendment’s Due Process Clause limits a state’s power

to exercise control over a nonresident defendant.” Knepfle v. J-

Tech Corp., 48 F.4th 1282, 1291 (11th Cir. 2022) (citing Walden v.

Fiore, 571 U.S. 277, 283 (2014)). “If Florida’s long-arm statute

does not provide a basis for personal jurisdiction under the

initial statutory prong of this inquiry, the constitutional

analysis is unnecessary.” Homeway Furniture Co. of Mount Airy,

Inc. v. Horne, 822 So. 2d 533, 536 (Fla. 2d DCA 2002).

The Supreme Court has recognized two types of personal

jurisdiction: general jurisdiction, which attaches when a

defendant is “essentially at home in the forum State,” and specific

jurisdiction, which “depends on an affiliation between the forum

and the underlying controversy.” Goodyear Dunlop Tires Operations,

S.A. v. Brown, 564 U.S. 915, 919 (2011) (internal quotation marks

omitted). The Florida long-arm statute addresses both general

personal jurisdiction, Fla. Stat. § 48.193(2), and specific

personal jurisdiction, Fla. Stat. § 48.193(1). “Because the

construction and interpretation of the Florida long-arm statute

raises questions of Florida law, the Court must construe the long-

arm statute as would the Florida Supreme Court.” SkyHop Techs.,

Inc., 58 F.4th at 1223 (citing United Techs. Corp. v. Mazer, 556

F.3d 1260, 1274 (11th Cir. 2009)).

A person submits himself to the jurisdiction of the courts in

Florida for any cause of action alleging any of the nine acts

enumerated in the statute. Fla. Stat. § 48.193(1)(a). Plaintiffs

assert that the Individual Defendants satisfy three of the bases

set forth the Florida long-arm statute for personal jurisdiction

pursuant to Fla. Stat. § 48.193(a)(1), (2), (6): (1) operating

labor halls in Florida; (2) by committing acts of tort, civil theft

and/or conversion, within Florida; and (3) by causing injury to

laborers within Florida. (Doc. #63, pp. 12-15.) Plaintiffs need

only establish one of these acts to satisfy the long-arm statute.

SkyHop, 58 F.4th at 1223.

“A prima facie case is established if the plaintiff presents

enough evidence to withstand a motion for directed verdict.” Meier

ex rel. Meier v. Sun Intern. Hotels, Ltd., 288 F.3d 1264, 1269

(11th Cir. 2002) (quoting Madara, 916 F.2d at 1514). As the

Eleventh Circuit has summarized:

To establish personal jurisdiction over a

nonresident defendant, a plaintiff “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) (quotation omitted).

Vague and conclusory allegations do not

satisfy this burden. See Snow v. DirecTV,

Inc., 450 F.3d 1314, 1318 (11th Cir. 2006).

Rather, a plaintiff must “present enough

evidence to withstand a motion for directed

verdict.” Stubbs [v. Wyndham Nassau Resort &

Crystal Palace Casino, 447 F.3d 1357, 1360

(11th Cir. 2006)] (quotation omitted). A

directed verdict is appropriate where “viewing

the evidence in its entirety and drawing all

reasonable inferences in favor of the

nonmoving party,” “the nonmoving party failed

to make a showing on an essential element of

his case with respect to which he had the

burden of proof.” Smith v. United States, 894

F.2d 1549, 1552 (11th Cir. 1990).

Catalyst Pharm., Inc. v. Fullerton, 748 F. App’x 944, 946 (11th

2

Cir. 2018).

When a defendant submits a non-conclusory affidavit

contesting the factual basis for personal jurisdiction, “the

burden shifts back to the plaintiff to produce evidence to support

personal jurisdiction.” Look Media LLC v. Fly Victor Ltd., 999

F.3d 1284, 1292 (11th Cir. 2021). Where the complaint and

plaintiff’s affidavits and the defendant’s non-conclusory

affidavits conflict, the district court must construe all

reasonable inferences in favor of the plaintiff. Don’t Look Media,

999 F.3d at 1292; Madara, 916 F.2d at 1514.

The Affidavit of Kenneth Joekel (Doc. #60-1) states that he

does not have any personal bank accounts or investment accounts in

Florida; he does not personally own any businesses in Florida; he

does not directly or personally own any real property in Florida;

2

Plaintiffs’ argument that personal jurisdiction may be pled

“merely by tracking the language of the long-arm statute without

pleading supporting facts” (Doc. #63, p. 6) (emphasis in original)

is therefore not consistent with governing federal law.

he is the trustee and beneficiary of a Texas Trust that owns

investment property, including in Florida; and he has not visited

the State of Florida since 2019. Joekel has never met either

plaintiff. The Affidavit of Marc Plotkin (Doc. #60-2) states that

he does not have any personal or investment accounts in Florida

and he does not personally own any business or real property in

Florida. Plotkin does visit Florida 4-5 times per year on business

for Pacesetter. Plotkin has also never met either plaintiff.

III. Analysis

Plaintiffs do not assert that the Individual Defendants are

subject to general personal jurisdiction, but rather assert that

both are subject to specific personal jurisdiction in Florida.

The Court therefore limits its discussion to specific jurisdiction

issues.

A. Plaintiffs’ Causes of Action

“In Florida, before a court addresses the question of whether

specific jurisdiction exists under the long-arm statute, the court

must determine ‘whether the allegations of the complaint state a

cause of action.’” PVC Windoors, Inc. v. Babbitbay Beach Const.,

N.V., 598 F.3d 802, 808 (11th Cir. 2010) (quoting Wendt v.

Horowitz, 822 So. 2d 1252, 1260 (Fla. 2002)). In a diversity case

the federal pleading standard requires that “a complaint must

contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Ounjian v.

Globoforce, Inc., 89 F.4th 852, 857 (11th Cir. 2023) (citation

omitted).

The Court determines personal jurisdiction after accepting

the factual allegations in the complaint as true. Don’t Look

Media, 999 F.3d at 1292. Nonetheless, these accepted-as-true facts

must establish a prima facie case of personal jurisdiction. Mazer,

556 F.3d at 1274 (“A plaintiff seeking the exercise of 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.”). See also Posner, 178 F.3d at 1214

(“A plaintiff seeking to obtain jurisdiction over a nonresident

defendant initially need only allege sufficient facts to make out

a prima facie case of jurisdiction” (citation omitted)).

(1) FLPA Claims

Counts I and II of the Amended Complaint each allege a

violation of the FLPA by all defendants, including the Individual

Defendants. In Count I, plaintiffs allege that all defendants

violated the FLPA by routinely overcharging workers for

transportation to and from job sites. (Doc. #54, ¶¶ 142-151.) In

Count II, plaintiffs allege that all defendants violated the FLPA

by routinely charging workers for the temporary use of safety

equipment, clothing, accessories, and other items required by the

nature of the work either by law, custom, or as a requirement of

the third-party user. (Id. at ¶¶ 152-160.)

During the time period relevant to this case, the FLPA

provided in pertinent part:

(1) No labor pool shall charge a day laborer:

(a) For safety equipment, clothing,

accessories, or any other items required by

the nature of the work either by law, custom,

or as a requirement of the third-party user:

. . .

(b) More than a reasonable amount to transport

a worker to or from the designated worksite,

but in no event shall the amount exceed $1.50

each way….

Fla. Stat. § 448.24(1). “Any worker aggrieved by a violation of

s. 448.24 has the right to bring a civil action in a court of

competent jurisdiction against the labor pool responsible for such

violation.” Fla. Stat. § 448.25(1)(a). The FLPA is “penal in

nature,” and “any ambiguity present in a civil statute of a penal

nature is construed in favor of the party alleged to have violated

the statute.” Liner v. Workers Temp. Staffing, Inc., 990 So. 2d

3

473, 477 (Fla. 2008).

The duties imposed by the FLPA are only imposed upon a “labor

pool,” § 448.24(1), and suit may only be filed against a “labor

3

Plaintiffs’ allegation in the Amended Complaint that the

FLPA “is a remedial statute” (Doc. #54, ¶ 4) is therefore

incorrect.

pool.” § 448.25(1)(a). The FLPA defines a “labor pool” as a

“business entity” that operates a “labor hall” by one or more of

three specified methods. Fla. Stat. § 448.22(1). A “business

entity” in turn “means any individual, corporation, business

partnership, firm, institution, or association.” Fla. Stat. §

448.22(4). A “labor hall” is “a central location maintained by a

labor pool where day laborers assemble and are dispatched to work

for a third-party user.” Fla. Stat. § 448.22(3).

(2) Breach of Contract Claim

Count III alleges that all defendants breached a provision of

Pacesetter’s Employment Agreement with its workers. The

Employment Contract provides that “the Company shall provide

transportation to and from the [work] assignment, if requested by

applicant and applicant agrees to share in the cost of that

transportation.” (Doc. #54-1 at ¶ 3.) Plaintiffs alleged that

they never requested transportation, or agreed to share in its

cost, but nonetheless were charged for the transportation provided

to them. “The elements of a breach of contract claim are (1) the

existence of a contract; (2) a breach of the contract; and (3)

causation of damages as a result of the breach.” Cole v.

Plantation Palms Homeowners Ass'n, Inc., 371 So. 3d 413, 415 n.2

(Fla. 2d DCA 2023) (citations omitted).

B. Alter Ego/Piercing Corporate Veil

To plausibly state the causes of action against the Individual

Defendants, all three counts must sufficiently allege an alter ego

relationship by piercing the corporate veil provided by the

Corporate Defendants. Establishing such an alter ego relationship

also impacts personal jurisdiction over the individual defendants.

“Under the alter ego theory of long-arm jurisdiction, a nonresident

shareholder of a resident corporation may be subject to long-arm

jurisdiction where the alter ego test can be met.” Bellairs v.

Mohrmann, 716 So. 2d 320, 322 (Fla. 2d DCA 1998) (citations

omitted). “It is well-established that state contract law governs

the issue of whether a contact may be enforced against a nonparty

to the contract.” Paquin v. Campbell, 378 So. 3d 686, 689 (Fla.

5th DCA 2024) (citations omitted) Including determining if a non-

signatory will be bound under a veil piercing/alter ego theory.

Paquin, 378 So. 3d at 690.

(1) General Principles

The general rule in Florida is clear. “While a corporation

itself may be subject to jurisdiction when it transacts business

through its agents operating in the forum state, unless those

agents transact business on their own account in the state, as

opposed to engaging in business as representatives of the

corporation, they are not engaged in business so as to be

individually subject to the state's long-arm statute.” Excel

Handbag Co., Inc. v. Edison Bros. Stores, Inc., 428 So. 2d 348,

350 (Fla. 3d DCA 1983) (citations omitted). Nonetheless, “‘a

nonresident shareholder of a corporation doing business in Florida

may be subject to long-arm jurisdiction’ if the alter ego test can

be met.” WH Smith, PLC v. Benages & Assocs., 51 So. 3d 577, 581

(Fla. 3d DCA 2010) (quoting Aldea Communs., Inc. v. Gardner, 725

So. 2d 456, 457 (Fla. 2d DCA 1999)).

“To establish jurisdiction under the alter ego theory, the

plaintiff's pleading must set forth sufficient jurisdictional

allegations to pierce the corporate veil of the resident

corporation.” WH Smith, PLC, 51 So. 3d at 581 (citing Bellairs v.

Mohrmann, 716 So. 2d 320, 322 (Fla. 2nd DCA 1998)). “The corporate

veil cannot be pierced unless the plaintiff can establish ‘both

that the corporation is a ‘mere instrumentality’ or alter ego of

the defendant, and that the defendant engaged in ‘improper conduct’

in the formation or use of the corporation.’” Id. (quoting

Bellairs at 322) (emphasis in original). See also SDSol Techs.,

LLC v. Stardam, LLC, So. 3d , 2023 WL 8609236, *1, 48 Fla. L.

Weekly D2344 (Fla. 3d DCA 2023) (must allege an actionable,

specific statement that was relied upon); Parisi v. Kingston, 314

So. 3d 656, 664 (Fla. 3d DCA 2021); Abdo v. Abdo, 263 So. 3d 141,

150 (Fla. 2d DCA 2018) (discussing two-step process).

The Florida Supreme Court has spoken to the

issue of when the corporate veil should be

pierced as follows:

Corporations are legal entities by

fiction of law. Their purpose is

generally to limit liability and

serve a business convenience.

Courts are reluctant to pierce the

corporate veil and only in

exceptional cases will they do so.

Such instances are for fraud as

where creditors are misled and

defrauded or where the corporation

is created for some illegal purpose

or to commit an illegal act.

State ex rel. Continental Distilling Sales Co.

v. Vocelle, 158 Fla. 100, 27 So.2d 728, 729

(Fla. 1946). A party seeking to pierce the

corporate veil and hold a parent corporation

liable for the actions of its subsidiary must

prove: (1) that the subsidiary was a “mere

instrumentality” of the parent, and (2) that

the parent engaged in “improper conduct”

through its organization or use of the

subsidiary. See Dania Jai–Alai Palace, Inc. v.

Sykes, 450 So. 2d 1114, 1117–21 (Fla. 1984).

Improper conduct is present only in “‘cases in

which the corporation was a mere device or

sham to accomplish some ulterior purpose ...

or where the purpose is to evade some statute

or to accomplish some fraud or illegal

purpose.’” Id. at 1117 (quoting Mayer v.

Eastwood, Smith & Co., 122 Fla. 34, 164 So.

684, 687 (Fla.1935)).

Johnson Enterprises of Jacksonville, Inc. v. FPL Group, Inc., 162

F.3d 1290, 1320 (11th Cir. 1998). Stated a little differently, a

corporation’s owners may be held liable if plaintiff can “pierce

the corporate veil” by sufficiently alleging and ultimately

proving that:

(1) the shareholder dominated and controlled

the corporation to such an extent that the

corporation's independent existence, was in

fact non-existent and the shareholders were in

fact alter egos of the corporation;

(2) the corporate form must have been used

fraudulently or for an improper purpose; and

(3) the fraudulent or improper use of the

corporate form caused injury to the claimant.

Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1349

(11th Cir. 2011) (citations omitted). See also W.P. Productions,

Inc. v. Tramontina U.S.A., Inc., F.4th , 2024 WL 1984727, at

*2 (11th Cir. May 6, 2024) (citing Molinos). When analyzing a

veil-piercing claim under a motion to dismiss, a court must

recognize that the “issue is not whether [plaintiff] may ultimately

prevail on the ‘piercing the corporate veil’ theory, but whether

the allegations are sufficient to allow them to conduct discovery

in an attempt to prove their allegations.” Jackam v. Hosp. Corp.

of Am. Mideast, 800 F.2d 1577, 1579–80 (11th Cir. 1986)).

(2) Application of Alter Ego Principles

Plaintiffs argue that the Amended Complaint sufficiently

alleges Joekel is the alter ego of the Corporate Defendants. (Doc.

#63, pp. 15-17.) Plaintiffs do not make any such assertion as to

Plotkin. If plaintiffs cannot state a claim, they cannot satisfy

the specific personal jurisdiction requirement of Wendt v.

Horowitz, 822 So. 2d 1252, 1260 (Fla. 2002)) (the threshold

question that must be determined is whether the complaint states

a cause of action before determining whether the cause of action

arises from communications).

Plaintiffs have provided insufficient factual allegations to

support the conclusory statement that “the corporate Defendants

were an alter ego of Defendant Joekel.” (Doc. #54 at ¶ 26.) The

Amended Complaint only asserts that Joekel is the sole owner and

principal of Pacesetter and that senior operations people reported

directly to him. (Id. at ¶¶ 25, 29.) However, “[t]he law is clear

that the mere ownership of a corporation by a few shareholders, or

even one shareholder, is an insufficient reason to pierce the

corporate veil.” Gasparini v. Pordomingo, 972 So. 2d 1053, 1055

(Fla. 3d DCA 2008) (citation omitted). See also Advertects, Inc.

v. Sawyer Indus., 84 So. 2d 21, 23–24 (Fla. 1955) (“The mere fact

that one or two individuals own and control the stock structure of

a corporation does not lead inevitably to the conclusion that the

corporate entity is a fraud or that it is necessarily the alter

ego of its stockholders to the extent that the debts of the

corporation should be imposed upon them personally. If this were

the rule, it would completely destroy the corporate entity a method

of doing business and it would ignore the historical justification

for the corporate enterprise system.”).

The Amended Complaint makes no specific allegations as to

Plotkin except to allege that he was the Executive Vice President

of Pacesetter, that he reported directly to Joekel, he was a senior

operations employee, he made operational decisions, and he visited

Florida a few times a year. (Doc. #54 at ¶¶ 36-39, 41.) Since

the allegations against the owner of Pacesetter are insufficient,

it follows that the same holds true for an employee.

The Court finds that the Amended Complaint does not contain

sufficient factual allegations to pierce Pacesetter’s corporate

veil as to either individual defendant for the alleged violation

of the FLPA or the alleged breach of contract. In fact, there are

not allegations of ‘improper conduct’ in the formation or use of

the corporation. Without piercing the corporate veil, the Amended

Complaint on its face fails to state a claim against either

individual defendant.

C. FLPA and Individual Liability

Plaintiffs argue that both individual defendants are subject

to the personal jurisdiction of the district court because the

FLPA allows for individual liability. (Doc. #63, pp. 10-12.)

While the FLPA does provide that an individual may be liable for

a statutory violation, it does not create personal jurisdiction

over an individual defendant.

As discussed earlier, the FLPA provides that a “labor pool”

may not charge a day laborer “(a) For safety equipment, clothing,

accessories, or any other items required by the nature of the work

either by law, custom, or as a requirement of the third-party user”

or “(b) More than a reasonable amount to transport a worker to or

from the designated worksite, but in no event shall the amount

exceed $1.50 each way.” Fla. Stat. § 448.24(1)(a), (b). An

aggrieved worker may bring a civil action “against the labor pool.”

Fla. Stat. § 448.25. The FLPA defines a “labor pool” as a “business

entity” that operates a “labor hall” by one or more of three

specified methods. Fla. Stat. § 448.22(1). A “business entity”

in turn “means any individual, corporation, business partnership,

firm, institution, or association.” Fla. Stat. § 448.22(4). A

“labor hall” is “a central location maintained by a labor pool

where day laborers assemble and are dispatched to work for a third-

party user.” Fla. Stat. § 448.22(3).

While Florida imposes statutory liability on a “business

entity” operating as a “labor pool,” it extends the obligations of

the statute and potential liability under it to an individual by

virtue of its definition of “business entity.” But providing a

definition of “business entity” which includes an individual says

nothing about personal jurisdiction over that individual or about

Florida’s alter ego principles. The Amended Complaint in this

case does not plausibly allege that the “labor pool” at issue in

this case was either of the two individual defendants.

D. Civil Theft and Conversion

Additionally, plaintiffs assert that the corporate shield

doctrine is inapplicable because they have sufficiently alleged

that the corporate officers committed the intentional torts of

4

civil theft and/or conversion. (Doc. #63, pp. 8-9.) Contrary to

this argument, however, the Amended Complaint fails to allege that

either individual defendant committed civil theft or conversion.

Rather, as noted before, the Amended Complaint alleges two

statutory violations and a breach of contract claim. Plaintiffs

cannot rely on claims that are not made in the operative complaint

to assert personal jurisdiction.

In sum, the Court finds that plaintiffs have not sufficiently

alleged that either Joekel or Plotkin fall within alter ego

principles sufficient to breach the corporate veil. Therefore,

the conduct of the corporate defendants cannot be attributed to

these individual defendants to determine specific personal

4

Plaintiffs allege that the intentional tort at issue is

conversion and civil theft of the monies taken from day laborers.

Civil theft is conversion with criminal intent. Gokalp v. Unsal,

284 So. 3d 1097, 1099 (Fla. 4th DCA 2019). To establish a claim,

plaintiffs must prove conversion with a criminal intent “by clear

and convincing evidence.” Transcapital Bank v. Shadowbrook at

Vero, LLC, 226 So. 3d 856, 864 (Fla. 4th DCA 2017). “Where the

property at issue is also the subject of a contract between the

parties, a civil theft claim requires additional proof of “an

intricate sophisticated scheme of deceit and theft.” Gersh v.

Cofman, 769 So. 2d 407, 409 (Fla. 4th DCA 2000).

jurisdiction. As previously noted, if Florida’s long-arm statute

does not provide a basis for personal jurisdiction, which it does

not, the constitutional analysis is unnecessary. Homeway

Furniture, 822 So. 2d at 536.

Accordingly, it is now

ORDERED :

1. Individual Defendants' Motion to Dismiss Plaintiffs'

Complaint (Doc. #12) is GRANTED and Kenneth Joekel and Marc Plotkin

are dismissed without prejudice.

2. The Clerk shall withhold the entry of judgment until the

conclusion of the case.

DONE AND ORDERED at Fort Myers, Florida, this 23rd day of

May 2024.

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SHNIOR UNITED STATES DISTRICT JUDGE

Copies:

Counsel of record