The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 1:21-cv-22303-JLK
MICRO FINANCE ADVISORS, INC.,
a Florida corporation,
Plaintiff,
v.
CLAUDIO MATUS COLOUMB,
an individual residing in Guatemala,
Defendant.
/
ORDER GRANTING DEFENDANT’S MOTION
TO DISMISS FOR LACK OF PERSONAL JURISDICTION
THIS CAUSE is before the Court on Defendant’s Motion to Dismiss Complaint for Lack
of Personal Jurisdiction or, in the Alternative, for Forum Non Convivens, and Motion to Strike
Attorney’s Fees Demand (the “Motion”) (DE 6), filed on July 6, 2021. The Court has also
considered Plaintiff’s Response (DE 11), Defendant’s Reply (DE 13), and is otherwise fully
advised.
I. BACKGROUND
Plaintiff is a Florida corporation that provides financial management for Banco Solidario
and Banco de Antigua, two Latin American banks. Compl. ¶¶ 3, 19–20. Plaintiff’s officers are also
board members and shareholders of these same banks. Id. ¶ 22. Defendant is a resident of
Guatemala. Id. ¶ 4. On or about February 1, 2006, Defendant was hired by Plaintiff to be a general
manager and commercial vice president for a bank which subsequently became Banco Solidario.
Id. ¶24. Defendant also performed duties for Plaintiff such as delivering presentations (one of
In or around March 2016, Plaintiff terminated Defendant. Id. ¶ 33. On April 15, 2016,
Plaintiff and Defendant reached a termination settlement agreement where Plaintiff agreed to send
cash payments (Plaintiff transferred $200,000), and Defendant agreed to release Plaintiff and its
affiliated banks from any further obligation. Id. ¶¶ 47–48. Defendant allegedly subsequently
misrepresented his intentions of accepting the terms of the settlement agreement via telephone and
email, accepted payments from Plaintiff, continued to incur charges on Defendant’s company
credit card from employer bank, and went on to initiate lawsuits in Guatemala for more money in
violation of the termination settlement agreement. Id. ¶¶ 54–56.
On May 2, 2018, Defendant filed a civil suit in Guatemala under Guatemalan labor law
against Banco de Antigua demanding money payments “from Banco de Antigua, Banco Solidario,
and/or Plaintiff.” Id. ¶¶ 58–59. On June 7, 2018, Defendant filed a criminal action in Guatemala
against Mr. Fernando Bueno, chairman of the board of directors of Banco de Antigua and vice
president of Plaintiff corporation. Id. ¶ 61. Plaintiff alleges this criminal action is an effort by
Defendant to obtain additional money. Id. ¶¶ 61–62.
Plaintiff filed the above-styled action in state court alleging fraudulent misrepresentation,
breach of contract, negligent misrepresentation, and unjust enrichment. See Compl., DE 1-1. On
May 27, 2021, Defendant was served in Guatemala. Not. of Removal, DE 1. On June 23, 2021,
Defendant timely removed this case to federal court. Id. Defendant now moves to dismiss the
Complaint for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2), or for
forum non conveniens. See Mot. The Court finds that the Motion to Dismiss should be granted for
the reasons stated herein.
II. LEGAL STANDARD
The determination of whether a federal court has personal jurisdiction over a defendant
involves a two-part inquiry. First, it must be determined whether the complaint alleges sufficient
jurisdictional facts to bring the action within the ambit of Florida’s Long Arm Statute, which is
codified at § 48.193, Fla. Stat. Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989).
Second, the Court must determine whether sufficient minimum contacts exist, in order to satisfy
the due process requirements of the United States Constitution. Id. “[T]he constitutional
touchstone” to determine whether an exercise of personal jurisdiction comports with due process
“remains whether the defendant purposefully established ‘minimum contacts’ in the forum State.”
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985). “Jurisdiction is proper . . . where the
contacts proximately result from actions by the defendant himself that create a ‘substantial
connection’ with the forum State.” Id. (quoting McGee v. Int’l Life Ins. Co., 355 U.S. 220, 223
(1957) (emphasis supplied).
III. DISCUSSION
A. Long Arm Statute
Defendant argues that he is not subject to Florida’s Long Arm Statute because he did not
make intentional false communications into Florida. See Mot; Fla. Stat. § 48.193(1)(a)(2).
Defendant states that he “never knew the location of the [P]laintiff when the alleged misconduct
took place.” Mot. at 10. In his declaration, Defendant states that he did not learn that Plaintiff was
a Florida corporation until being served with the Complaint.1 Def.’s Decl. ¶¶ 15, 20, DE 6-1.
Further, Defendant states that he never signed a contract with Plaintiff, and never failed to perform
a contract in Florida. Id. ¶¶ 16–17. Defendant additionally argues that the Complaint does not make
“allegations specifying the purported personal misconduct by [Defendant] that knowingly ‘aimed
at’ [Plaintiff] in Florida.” Mot. at 10–11.
1 On a motion to dismiss for lack of personal jurisdiction, the Court derives the facts from the affidavits and records
attached to the motion and response. See Venetian Salami Co. 554 So. 2d at 502–03. When the plaintiff's complaint
and supporting affidavits and evidence conflict with the defendant's affidavits, the Court construes all reasonable
inferences in the plaintiff's favor. See Stubbs v. Wyndham Nassau Resort & Crystal Palace Casino, 447 F.3d 1357,
In its Response, Plaintiff argues that it has sufficiently plead a “tortious act within the
state,” and Defendant’s communications by phone and e-mail into Florida satisfy the requirements
for personal jurisdiction under Florida’s Long Arm Statute. Resp. at 8–12. Mr. Bueno, vice
president of Plaintiff corporation, states in his affidavit that “Defendant knew that [Mr. Bueno]
moved to Miami [in 2011] for the purpose of working for Plaintiff in Miami.” Bueno Decl. ¶ 18,
DE 11-1. Mr. Bueno also states that during the settlement negotiations with Defendant, Mr. Bueno
made it clear that he was negotiating on behalf of Plaintiff, that Defendant knew of Mr. Bueno’s
role with Plaintiff, and that Mr. Bueno and Plaintiff were domiciled in Florida. Id. 19.
Florida’s Long Arm Statute creates jurisdiction over a person when he commits a tortious
act within this state. Fla. Stat. § 48.193(1)(a)(2). Plaintiff’s Complaint alleges personal jurisdiction
over Defendant under the Florida Long-Arm Statute because Defendant “communicated into
Florida material false statements to Plaintiff . . . with the intention of inducing Plaintiff to rely on
those statements . . . via e-mail and telephone to Plaintiff in Florida on several occasions in the
context of settlement negotiations . . . .” Compl. ¶ 5. Plaintiff also alleges with particularity the
instances of tortious misrepresentation, including Defendant’s March 31, 2016 email stating that
Defendant is “willing to give up an important sum of [his] income,” Defendant’s April 1, 2016
telephone call negotiating the settlement, and Defendants April 6, 2016 email accepting the terms
of the settlement agreement. Compl. ¶¶ 5, 12, 14, 35, 37, 45, 46, 65, 66, 75, 85, 86, 87.
A nonresident defendant’s “telephonic, electronic, or written communications” are
sufficient to form the basis for personal jurisdiction under Florida’s Long Arm Statute when
alleged in plaintiff’s complaint and if the alleged cause of action arises from the communications.
See Wendt v. Horowitz, 822 So. 2d 1252 (Fla. 2002). Plaintiff alleges specific communications
into Florida in its Complaint. Therefore, Defendant falls within the ambit of Florida’s Long Arm
Statute.
B. Minimum Contacts
Secondly, the Court determines whether the exercise of jurisdiction comports with the due
process requirements of the Fourteenth Amendment. Defendant argues that he lacked minimum
contacts with Florida for jurisdiction to be constitutional. Mot. at 13–14. Specifically, Defendant
argues that Plaintiff must show Florida has either specific or general jurisdiction to establish a
defendant’s minimum contacts with the forum state and that neither can be shown here. Defendant
argues that there is no specific jurisdiction because Defendant has no agreement, contract, or
business in Florida and mere communications between a Florida plaintiff and defendant are not
sufficient. Mot. at 15; Cauff, Lippman & Co. v. Apogee Finance Group, Inc., 745 F. Supp. 678
(S.D. Fla. 1990). And that there is no general jurisdiction because Defendant does not conduct
“continuous and systematic” business in Florida. Fraser v. Smith, 594 F.3d 842, 846
(S.D.Fla.2010) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416
(1984)). The Court agrees that because Defendant’s business was not continuous and systematic
within Florida, general jurisdiction over Defendant does not exist.
Defendant argues that when analyzing minimum contacts, “[f]irst, the relationship must
arise out of contacts that the ‘defendant himself’ creates with the forum State.” Walden v. Fiore,
571 U.S. 277, 284 (2014) (citing Burger King, 471 U.S. at 475). And second, analyze the
“defendant’s contacts with the forum State itself, not defendant’s contacts with persons who reside
there.” Id. at 285 (citing International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
Defendant argues that his alleged contact with Florida all stems from Plaintiff’s “unilateral conduct
towards Defendant.” Reply at 4. The facts that Plaintiff alleges to connect Defendant and Florida,
such as: (1) Plaintiff’s use of American email addresses during negotiations, (2) Plaintiff’s
settlement payment originating from an American bank account, and (3) Mr. Bueno’s location in
Florida when negotiating—all come from Plaintiff’s activities, not contacts that Defendant himself
created. Reply at 5.
Plaintiff argues that the Court has specific personal jurisdiction under the Due Process
Clause. Resp. at 12–17. Plaintiff argues that “[w]hen dealing with intentional torts, the effects test
[used in Calder v. Jones] is used in cases of specific jurisdiction.” Resp. at 13; Oldfield v. Pueblo
De Bahia Lora, S.A., 558 F.3d 1210, 1221 n.28 (11th Cir. 2009) (citing Calder v. Jones, 465 U.S.
783, 788–89 (1984)). Under the “effects” test, minimum contacts are shown if Defendant: “(1)
committed an intentional tort (2) that was directly aimed at the forum, (3) causing an injury within
the forum that the defendant should have reasonably anticipated.” Oldfield, 558 F. 3d at 1224 n.28.
Plaintiff, in its application of the effects test, argues that “[t]he subject communications
constitute the intentional tort of fraudulent misrepresentation, Plaintiff [sic] knew he was directing
his fraudulent communications into Florida based on years of interactions with Plaintiff’s
representatives in their capacities as Plaintiff’s representatives, which caused Plaintiff foreseeable
injury in Florida.” Resp. at 13.
“Calder made clear that mere injury to a forum resident is not a sufficient connection to
the forum.” Walden 571 U.S. at 290. Plaintiff alleges that the harm stemmed from Defendant’s
tortious misrepresentations sent into Florida. See Compl. To further connect Defendant to Florida,
Mr. Bueno, vice president of Plaintiff also states that “Plaintiff wired bonuses from Plaintiff’s
Bank of America account in Florida to Defendant’s bank account in Panama at least twice a year
from 2014 to 2016 and Defendant also received $200,000.00 in settlement money wired from
Plaintiff’s Bank of America account in Florida. . . .” Bueno Decl. ¶¶ 12, 20. However, when
negotiating his settlement agreement, Defendant was not only negotiating with a Florida
corporation, but Defendant was also negotiating with his employer bank located in Guatemala. Mr.
Bueno also works as chairman of the board of directors for Banco de Antigua, the highest position
in the Guatemalan bank where Defendant worked. Compl. ¶ 60.
It appears Defendant’s closest contact geographically to Florida was when he “traveled [in
October 2014] to Florida to discuss a presentation of business matters” with executives of Plaintiff
corporation. Bueno Decl. ¶ 15. Defendant contends that he did not make a presentation while in
Florida but instead traveled to discuss Banco de Antigua’s business with Andres Jervis, a director
of Plaintiff corporation and chairman of the board of directors of Banco de Antigua, while Mr.
Jervis was receiving medical treatment in Florida. Def.’s Decl. ¶ 33. Regardless, Defendant’s 2014
trip is far enough removed from his 2016 employment termination negotiation that the trip would
not have causes a foreseeable injury in Florida.
It is undisputed that Plaintiff is domiciled in Florida. Compl. ¶ 3. Naturally, Plaintiff’s
business dealings would originate from Florida. “But the plaintiff cannot be the only link between
the defendant and the forum. . . it is the defendant’s conduct that must form the necessary
connection with the forum State. . . .” Walden 571 U.S. at 285 (citing Burger King Corp., 471 U.S.
at 478.
After careful consideration, and for the above-mentioned reasons, the Court finds that
minimal contacts do not exist between Defendant and Florida. Therefore, this Court lacks personal
jurisdiction over Defendant.
Accordingly, it is ORDERED, ADJUDGED, AND DECREED that:
1. Defendant’s Motion to Dismiss (DE 6) be, and the same hereby is, GRANTED.
2. Plaintiff’s Demands for Attorney’s Fees are hereby STRICKEN;
3. Plaintiff’s Complaint (DE 1-1) is DISMISSED without prejudice; and
4. The Clerk of Court shall CLOSE this case.
DONE AND ORDERED in Chambers at the James Lawrence King Federal Justice
Building and United States Courthouse, Miami, Florida, this 1st day of October, 2021.
:
Soames □ Meet
a j{ JAMES LAWRENCE KING
Loon UNITED STATES DISTRICYJUDGE
Uv
ce: All counsel of record
The Clerk of Court