Kline v. BYRD

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

Miami Division

Case Number: 21-21125-CIV-MORENO

BRYNDON KLINE,

Plaintiff,

vs.

LAMAR BYRD, JR., LCBOHAZE

ORGANICS LLC, COLORADO NUTRA,

LLC, JAMES BRIAN CLARK, and ANDREA

SEED OILS, LLC,

Defendants.

_________________________________________/

ORDER DENYING DEFENDANT CLARK’S MOTION

TO DISMISS FOR LACK OF PERSONAL JURISDICTION

This matter came before the Court upon Defendant James Brian Clark’s Motion to Dismiss

for Lack of Personal Jurisdiction (D.E. 14). Clark’s motion is denied because Plaintiff Bryndon

Kline has alleged sufficient jurisdictional facts to satisfy Florida’s long-arm statute—Clark

committed a tortious act within the state of Florida—and exercising personal jurisdiction over

Clark for his alleged tort, intentional misrepresentations made to a Florida resident at the time,

would not violate the Due Process Clause. Because the remaining claims against Clark arise from

the same jurisdiction-generating event, the Court shall exercise pendent personal jurisdiction over

the remaining claims.

I. BACKGROUND

This is a case where one of the Defendants, James Brian Clark, a California resident,

allegedly misrepresented that his company, Andreas Seed Oil, would deliver “vegan, gluten free,

USDA organic, non-gmo, and kosher” Cannabidiol (“CBD”) products to a Florida company,

Green Origins, LLC. Green Origins was engaged in the sale and distribution of organic CBD

products prior to its dissolution. Clark allegedly made these misrepresentations to the Plaintiff,

Bryndon Kline, a Florida resident at the time of the events alleged in the complaint. Green Origins

contracted with Andreas Seed and another Defendant, Colorado Nutra LLC, for the certified

products for $87,800.00. As alleged, Andreas Seed and Colorado Nutra breached that contract

when they delivered non-compliant products to Green Origins. Following the breach, Kline claims

that he entered a settlement agreement with Clark and Andreas Seed for the repayment of the

monies owed to him, as Kline was the surviving member of Green Origins. Clark and Andreas

Seed made two payment of $5,000 to Kline but have failed to pay the remainder of what is owed

under the contract—$77,800.00.

Kline filed suit against the Defendants. As to Clark, Kline alleges the following causes of

action: “enforcement of settlement agreement” (Count I); “negligent misrepresentation” (Count

III); “intentional misrepresentation” (Count IV); “breach of duty of good faith and fair dealing”

(Count V); and “unjust enrichment” (Count VI). Clark is the only Defendant that has appeared in

the case—the others are in default. (D.E. 8, 19). Clark now moves to dismiss the complaint for

lack of personal jurisdiction.1

II. ANALYSIS

“A federal court sitting in diversity undertakes a two-step inquiry in determining whether

personal jurisdiction exists: the exercise of jurisdiction must (1) be appropriate under the state

long-arm statute and (2) not violate the Due Process Clause of the Fourteenth Amendment to the

United States Constitution.” United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009)

(internal citations omitted). “The reach of the [Florida long-arm] statute is a question of Florida

1 Clark did not file a motion to dismiss pursuant to Federal Rule of Procedure 12(b)(6); thus, this

order does not address the legal sufficiency of the causes of action against Clark in the complaint.

law. [F]ederal courts are required to construe [such law] as would the Florida Supreme Court.

Absent some indication that the Florida Supreme Court would hold otherwise, [federal courts] are

bound to adhere to decisions of [Florida’s] intermediate courts.” Id. at 1274-75 (citing Meier ex

rel. Meier v. Sun Intern. Hotels, Ltd., 288 F.3d 1264, 1271 (11th Cir. 2002)).

The plaintiff has the burden of establishing a prima facie case of personal jurisdiction over

a nonresident defendant. Meier, 288 F.3d at 1271. When dealing with a motion to dismiss for lack

of personal jurisdiction, courts must accept the factual allegations in the Complaint as true and,

should the defendant “submit[] affidavits contrary to the allegations in the complaint, the burden

shifts back to the plaintiff to produce evidence supporting personal jurisdiction, unless the

defendant’s affidavits contain only conclusory assertions that the defendant is not subject to

jurisdiction.” See Stubbs v. Wyndham Nassau Resort and Crystal Palace Casino, 447 F.3d 1357,

1360 (11th Cir. 2006).

A. Florida’s Long-Arm Statute

“Florida’s long-arm statute provides for both general and specific personal jurisdiction.”

Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1352 (11th Cir. 2013) (citing Fla. Stat. §

48.193(1)-(2)). “General personal jurisdiction exists when a defendant ‘is engaged in substantial

and not isolated activity within this state…whether or not the claim arises from that activity.” Id.

(citing § 48.193(2)). Stated differently, “[g]eneral personal jurisdiction is based on a defendant’s

substantial activity in Florida without regard to where the cause of action arose.” Mosseri, 736

F.3d at 1352.

“On the other hand, specific personal jurisdiction authorizes jurisdiction over causes of

action arising from or related to the defendant’s actions within Florida and concerns a nonresident

defendant’s contacts with Florida only as those contacts related to the plaintiff’s cause of action.”

See id.; see also Fabrica de Fideos Rivoli, S.A. v. Famex Investments Limited, 225 So.3d 312

(Mem) (Fla. 3d DCA 2017) (citing Venetian Salamu Co. v. Parthenais, 554 So.2d 499, 502 (Fla.

1989) (providing that personal jurisdiction over a nonresident defendant exists where: (1) the

complaint alleges sufficient jurisdictional facts to satisfy Florida’s long-arm statute, section 48.193

of the Florida Statutes; and (2) the nonresident defendant has sufficient minimum contacts with

Florida to satisfy constitutional due process concerns)).

Clark contends that there is no specific personal jurisdiction over the causes of action

against him because Florida’s long-arm statute has not been satisfied. Clark submitted an affidavit

with his motion to dismiss, where he avers as follows: (1) his place of residence or domiciliary is

in California; (2) he has no permanent or temporary residence in Florida; (3) he does not own any

real estate, personal property or any other assets in Florida; (4) he does not conduct any personal

business in Florida; (5) he does not maintain any business or personal records in Florida; (6) he

has never travelled to Florida in relation to or in connection with any of the allegations in the

complaint; (7) he did not engage in any activities to serve his own personal interest; and (8) with

respect to the allegations in the complaint, any conduct or actions attributable to him were done as

a member of Andreas Seed. (D.E. 14-1). Notably, in his affidavit, Clark does not deny that he

made misrepresentations to Kline. See id. generally.

Kline argues that there is specific jurisdiction over Clark via Florida’s long-arm statute,

that is, there are sufficient jurisdictional facts alleged here to satisfy Florida’s long-arm statute

under § 48.193(1)(a)2. Id. at 5-7.2 Florida’s long-arm statute provides, in relevant part:

(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 [], and, if he [] is a natural person, his [] personal representative to the

jurisdiction of the courts of this state for any cause of action arising from any of the

following actions:

2 In his opposition, Kline does not argue that this Court has general jurisdiction over Clark.

2. Committing a tortious act within this state.

§ 48.193(1)(a)2. Moreover, Kline attached a sworn declaration to his opposition where he avers

that Clark, the sole managing member of Andreas Seed, made misrepresentations to him

concerning the quality of the CBD oil, and, at that time, he was a Florida resident. (D.E. 20-1 ¶ 6).

The Court agrees with Kline and finds that, at a minimum, Florida’s long-arm statute has

been satisfied for the intentional misrepresentation claim (Count IV) as it is alleged that Clark

committed a tortious act—an intentional misrepresentation—by committing a tortious act within

this state. See § 48.193(1)(a)2. The Court must accept the allegations in the complaint as true

unless the defendant submits a non-conclusory affidavit contrary to the allegations. See Stubbs,

447 F.3d at 1360. Here, the complaint alleges that “[Kline] is the surviving member and the

successor of assets to Green Origins [], a Florida limited liability company that engaged in the sale

and distribution of Cannabidiol (“CBD”) products.” Green Origins contracted with Defendant

Colorado Nutra and Andreas Seed for products that were certified to be “vegan, gluten free, USDA,

organic, non-gmo, and kosher.” As alleged, that contract was negotiated and executed in Miami,

Florida, for the shipping of goods to Miami, Florida. The intentional misrepresentation claim

includes allegations of Clark’s tortious conduct, namely, that Clark misrepresented to Kline that

the products ordered by his company, Green Origins, were organic and compliant with United

States Department of Agriculture and/or Food and Drug Administration regulations. The

complaint further alleges that Clark knew or had reason to know the products were non-compliant,

but he delivered them anyway, and that Kline relied on this misrepresentation and sustained

damages as a result. These allegations remain uncontroverted by Clark’s affidavit. Kline also

submitted his own affidavit where he states that, “Clark [] made misrepresentations to him that

Green Origins would receive CBD oils that would meet U.S. Department of Agriculture standards

to be certified organic.” Moreover, in his affidavit, Kline states that he was a Florida resident at

the time that Clark made the misrepresentations to him.

For the first time in his reply, Clark contends that Florida’s corporate shield doctrine

prevents this Court from exercising personal jurisdiction over him. (D.E. 21. at 3-4). “The

‘corporate shield’ doctrine, also referred to as the ‘fiduciary shield’ doctrine, provides that acts

performed by a person exclusively in his corporate capacity not in Florida but in a foreign state

may not form the predicate for the exercise of personal jurisdiction over the employee in the forum

state.” See Kitroser v. Hurt, 85 So.3d 1084, 1088 (Fla. 2012) (emphasis in original) (citing Doe v.

Thompson, 620 So.2d 1004, 1005 (Fla. 1993)). In Kitroser, the Florida Supreme Court stated that

“[t]he rationale behind the corporate shield doctrine is that it may be unfair to force an individual

to defend an action filed against him personally in a forum with which his only relevant contacts

are acts performed totally outside the forum state and not for his own benefit but for the exclusive

benefit of his employer.” Id. (internal citations omitted).

However, as noted in Kline’s surreply,3 there is an exception to the corporate shield

doctrine: “Where an individual, nonresident defendant commits negligent acts in Florida, whether

on behalf of a corporate employer or not, the corporate shield doctrine does not operate as a bar to

personal jurisdiction in Florida over the individual defendant.” Kitroser, 85 So.3d at 1090. The

Florida Supreme Court in Kitroser reasoned, “[t]o hold otherwise [no jurisdiction over persons

that commit torts within Florida] would be tantamount to providing corporate employees with a

form of diplomatic immunity and would abolish the legislative goal inherent in adopting a long-

arm jurisdictional statute: to provide an in-state forum to hold those responsible who commit

3 Given that Clark raised this argument for the first time in his reply, the Court ordered Kline to

file a surreply addressing the corporate shield doctrine’s applicability here to shield Clark from

Florida’s long-arm statute.

negligent acts in Florida. Florida courts have personal jurisdiction over nonresident defendants

whose alleged negligent acts occur in-state irrespective of whether these acts occurred for the

benefit of a corporate employer.” See id.

Clark acknowledges this exception to the corporate shield doctrine, but maintains it is

inapplicable here because a tort was not committed in Florida. Yet, Florida’s District Court of

Appeals for the First District has noted that, “[a]lthough the exception for committing a tort ‘in

Florida’ generally requires a defendant’s physical presence, the exception may also encompass

alleged tortious acts involved, if those acts involved communication directed into Florida for the

purpose of committing a fraud, slander, or some other intentional tort.” See LaFreniere v. Craig-

Myers, 264 So.3d 232, 238 (Fla. 1st DCA 2018) (internal citations omitted).

The Court finds that the exception to the corporate shield doctrine applies here because the

“[the alleged tortious] acts involved communication directed into Florida for the purpose of

committing a fraud.” See id. Clark’s intentional misrepresentations were directed to a Florida

company, Green Origins, and a Florida resident at the time, Kline, and were made by way of

communications directed into Florida because, according to Clark’s affidavit, he has “never

travelled to Florida in relation to or in connection with any of the allegations in the Complaint.”

(D.E. 14-1 ¶ L.). Hence, because “under Florida law, a nonresident defendant commits ‘a tortious

act within [Florida]’ when he commits an act outside the state that causes injury within Florida,

on the record before this Court, Kline has alleged sufficient jurisdictional facts showing that

Florida’s long-arm statute has been satisfied for his claim of intentional misrepresentation against

Clark. See Mosseri, 736 F.3d at 1353 (emphasis in original) (citing Licciardello v. Lovelady, 544

F.3d 1280, 1283 (11th Cir. 2008)). Because the Court finds that there are sufficient jurisdictional

facts that satisfy Florida’s long-arm statute as to the intentional misrepresentation claim against

Clark, see § 48.193(1)(a)2., the Court must next determine whether Clark has sufficient minimum

contacts to satisfy constitutional due process concerns. See Fabrica de Fideos Rivoli, S.A., 225

So.3d 312 (Mem) (citing Venetian Salamu Co., 554 So.2d at 502).

B. Due Process Clause

“In specific personal jurisdiction cases, we apply the three-part due process test, which

examines: (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.’” Mosseri, 736 F.3d at 1355 (citing Burger King Corp.

v. Rudzewicz, 471 U.S. 462,472-73, 474-75 (1985)). The plaintiff carries the burden of satisfying

the first two prongs, and, once parts one and two of this test are satisfied, the burden then shifts

back to the defendant on part three, that is, the defendant must then show that the exercise of

personal jurisdiction would violate traditional notions of fair play and substantial justice. See Waite

v. All Acquisition Corp., 901 F.3d 1307, 1313 (11th Cir. 2018).

Clark maintains that there are no minimum contacts and that “[t]his Court lacks jurisdiction

over [Clark] because he has not purposefully or indirectly availed himself to be subject to this

Court’s jurisdiction.” As to the third prong, Clark concedes that the exercise of personal

jurisdiction comports with “traditional notions of fair play and justice.”

1. Whether Kline’s intentional misrepresentation claim “arises out of or relates

to” at least one of Clark’s contacts with the forum.

For a court to exercise specific personal jurisdiction, the plaintiff’s claim must arise out of

or relate to the defendant’s contacts with the forum. Ford Motor Co. v. Montana Eighth Jud. Dist.

Ct., 141 S. Ct. 1017, 1025 (2021). “Or put just a bit differently, 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 and is therefore subject to the State’s regulation.” Id. (internal

citations omitted). And as the Supreme Court recognized in Ford, “[t]he first half of [the arise out

of or relate to] standard asks about causation; but the back half, after the ‘or,’ contemplates that

some relationships will support jurisdiction without a causal showing.” See id.

The first prong of the due process test is satisfied here. Kline’s intentional

misrepresentation claim arises out of or relates to Clark’s contacts with the forum. In his complaint,

Kline alleges that Clark certified that the products ordered by Green Origins—located in Miami,

Florida—were organic and compliant with United States Department of Agriculture and/or Food

and Drug Administration regulations and Clark knew or reasonably should have known that Green

Origins would not be able to use non-compliant products, but Clark and Andreas Seed delivered

the non-compliant products to Green Origins anyway. (D.E. 1 ¶¶ 54-55, 57). Moreover, Kline, the

surviving member of Green Origins, submitted a declaration where he avers that Green Origins

was formerly headquartered in Florida and he was a resident of Florida at all times relevant to the

events described in the complaint. In his affidavit, Clark does not deny that he made the alleged

misrepresentations. As such, the Court finds that Kline’s intentional misrepresentation claim arises

out of or relates to at least one of Clark’s contacts with the forum, namely, his alleged

misrepresentations to a Florida company, Green Origins, and its surviving member who was a

Florida resident at the time, Kline.

2. Whether the nonresident defendant, Clark, “purposefully availed” himself of

the privilege of conducting activities within Florida.

“In intentional tort cases, there are two applicable tests for determining whether purposeful

availment occurred”—the “effects test” or the “traditional purposeful availment analysis.” See

Mosseri, 736 F.3d at 1356 (emphasis in original) (internal citation omitted). In his supplemental

brief, Kline directs the Court to the “effects test,” as recognized by the Eleventh Circuit in Mosseri.

See id. (citing Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984)). “Under the

‘effects test,’ a nonresident defendant’s single tortious act can establish purposeful availment,

without regard to whether the defendant had any other contacts with the forum state.” Id. (citing

Lovelady, 544 F.3d at 1285). “This occurs when the tort: ‘(1) [was] intentional; (2) [was] aimed at

the forum state; and (3) caused harm that the defendant should have anticipated in the forum

state.’” Id. (citing Lovelady, 544 F.3d at 1285-86, 1287-88).

Kline has shown that the second prong of the due process test is met here because there are

sufficient jurisdiction facts to satisfy the effects test: an intentional tort is alleged—intentional

misrepresentations made by Clark to Kline—and the misrepresentations were aimed at Florida and

caused harm that Clark should have anticipated in Florida, given that the contract was negotiated

and executed in Miami, Florida, for the shipping of goods to Miami, Florida. (D.E. 20-1 ¶ 3). See

Mosseri, 736 F.3d at 1356. For the first time, in his supplemental brief, Clark claims “he possessed

no reason to believe that he was engaging in business with a Florida entity or Florida persons.”

However, Clark did not state so in his affidavit. In his affidavit, Clark did not deny that the contract

was negotiated and executed in Miami, Florida, or that the goods were to be shipped to Miami,

Florida; Clark also failed to state that he did not know he was engaging in business with a Florida

company and resident.

Because courts must accept the factual allegations in the complaint as true and Clark has

failed to “submit[] [an] affidavit[] contrary to the allegations in the complaint,” based on the

evidentiary record here, the Court finds that the effects test has been satisfied and Clark

purposefully availed himself of the privilege of conducting activities within Florida. Stubbs, 447

F.3d at 1360.

3. Whether the exercise of personal jurisdiction comports with “traditional

notions of fair play and substantial justice.”

As Clark has the sufficient minimum contacts with the forum state, the Court must next

consider the third prong, whether the exercise of personal jurisdiction comports with “traditional

notions of fair play and substantial justice.” Clark concedes that the third prong is met here.

Accordingly, the Court finds that the exercise of personal jurisdiction over Clark comports with

traditional notions of fair play and substantial justice.

Thus, the Court finds that exercising personal jurisdiction over Clark does not offend the

Due Process Clause of the Fourteenth Amendment to the United States Constitution.

Having found that Kline has alleged sufficient jurisdictional facts to satisfy Florida’s long-

arm statute as to the intentional misrepresentation claim against Clark, see § 48.193(1)(a)2., and

the exercise of personal jurisdiction over Clark and this claim would not violate the Due Process

Clause, the Court need not address whether it has personal jurisdiction over the other claims

because there is pendent personal jurisdiction for the remaining claims alleged against Clark.

C. Pendent Personal Jurisdiction

The Eleventh Circuit has held that “[i]f the forum’s long-arm statute provides jurisdiction

over one claim, the district court has personal jurisdiction over the entire case so long as the claims

arose from the same jurisdiction-generating event.” See Thomas v. Brown, 504 Fed. Appx. 845,

847 (11th Cir 2013) (citing Cronin v. Washington Nat’l Ins. Co., 980 F.2d 663, 671 (11th Cir.

1993)). Here, the Court has pendent personal jurisdiction over the remaining claims against

Clark—enforcement of the settlement agreement (Count I), the negligent misrepresentation (Count

III), breach of duty of good faith and fair dealing (Count V), and unjust enrichment (Count VI)

because they all “arose from the same jurisdiction-generating event”—Clark’s alleged

misrepresentations that the CBD products were organic and complied with United States

Department of Agriculture and/or Food and Drug Administration regulations, and these

misrepresentations were made to a Florida company, and a Florida resident at the time, which were

harmed as a result. As such, the Court shall exercise its discretion and exercise personal jurisdiction

over the remaining claims against Clark.

II. CONCLUSION

Accordingly, for the foregoing reasons, Clark’s motion to dismiss for lack of personal

jurisdiction is denied.

DONE AND ORDERED in Chambers at Miami, Florida, this 16" of September 2021.

Achaia bb [lose

FEDERICO A.MORENO.

UNITED STATES DISTRICT JUDGE

Copies furnished to:

Counsel of Record

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