# Azumi LLC v. Lott & Fischer, PL

> District Court, S.D. Florida · August 16, 2022

URL: https://www.frixlaw.com/law-library/cases/10120845

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** August 16, 2022
- **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/10120845

## How later opinions describe it (automated extraction)

- finding transacting-business requirement met where, inter alia, defendant had $20 million worth of in-forum sales, had sales representative in forum and was registered to do business there

## Opinion text

United States District Court
District of Massachusetts

)
Azumi LLC et al., )
)
Plaintiffs, )
)
v. )
) Civil Action No.
Lott & Fischer, PL, ) 21-11311-NMG
)
Defendant. )
)

MEMORANDUM & ORDER
GORTON, J.
This action arises from alleged legal malpractice committed
by defendant law firm Lott & Fischer, PL (“L&F” or “defendant”).
Pending before the Court is L&F’s motion to dismiss the
complaint for lack of personal jurisdiction (Docket No. 10).
For the reasons that follow, the Court concludes that it cannot
exercise personal jurisdiction over L&F. Rather than dismiss
the action, however, the Court will transfer it to the United
States District Court for the Southern District of Florida.
I. Background
A. The Parties
Plaintiff Azumi, Ltd. is a foreign company organized under
the laws of England and Wales with a principal place of business
in London, England. It operates a global brand of upscale
modern Japanese restaurants under the brand name “Zuma”.
Plaintiff Azumi LLC (together with Azumi, Ltd., “plaintiffs” or
“the Azumi entities”) is a Massachusetts limited liability
company. Its sole member is Azumi, Ltd. and its principal place

of business is in the Commonwealth. It was organized in 2017 to
operate a Zuma restaurant in Boston, Massachusetts.
Defendant L&F is a law firm specializing in intellectual
property and a Florida professional limited liability company
with its principal place of business in Coral Gables, Florida.
L&F avers that none of its attorneys resides or regularly works
outside of Florida.
B. Factual and Procedural History
In 2007, L&F represented plaintiff Azumi, Ltd. in a
trademark dispute with a third party, B.B. Kitchen, Inc. (“B.B.
Kitchen”). The dispute, which was heard by the Trademark Trial
and Appeal Board in Alexandria, Virginia, concerned a challenge

brought by Azumi, Ltd. to B.B. Kitchen’s ownership of the “Zuma”
trademark which both Azumi, Ltd. and B.B. Kitchen used in the
names of their respective restaurants. B.B. Kitchen’s
restaurant, which it continues to operate, is named “Zuma Tex-
Mex Grill” and is located in Boston, Massachusetts.
Although Azumi, Ltd.’s challenge was unsuccessful, the
parties eventually agreed to a settlement whereby B.B. Kitchen
transferred the “Zuma” mark to Azumi, Ltd. (“the Settlement
Agreement”) and Azumi, Ltd., in turn, licensed the mark to B.B.
Kitchen for exclusive use in New England (“the License
Agreement”). In addition to the provisions concerning use of
the mark, the License Agreement afforded Azumi, Ltd. the right

to make annual inspections of Zuma Tex-Mex Grill to ensure that
it operated in a manner “consistent with the maintenance of the
ZUMA trademark.” L&F contends that it hired an independent
consultant based in Connecticut to conduct those inspections and
reported the results to Azumi, Ltd.
Approximately a decade later, an Azumi, Ltd. employee
inquired of L&F about whether it could open a Zuma-branded
restaurant in Boston (“Zuma Boston”) without violating its
obligations to B.B. Kitchen. An L&F attorney allegedly advised
that, based upon her review of the License Agreement, there was
no restriction to opening Zuma Boston.
The Settlement Agreement did, however, preclude Azumi from

doing just that and, shortly after Zuma Boston opened, B.B.
Kitchen sued the Azumi entities in the Massachusetts Superior
Court for Suffolk County for breach of the Settlement and
License Agreements. In the course of that litigation, B.B.
Kitchen obtained an injunction preventing the Azumi entities
from using the “Zuma” mark in Boston. Plaintiffs submit that,
faced with an injunction and having already opened their
restaurant in Boston, they had no choice but to settle the
litigation with B.B. Kitchen at substantial expense.
Thereafter, the Azumi entities, dissatisfied with the legal
advice they had received from L&F, commenced this action. In
addition to the facts recited above, plaintiffs argue that,

after erroneously advising them that they could open Zuma Boston
consistent with their obligations to B.B. Kitchen, L&F engaged
in a prolonged and concerted effort to conceal its unsound
advice. They assert claims against L&F for 1) legal malpractice
in the inconsistent drafting of the Settlement and License
Agreements and the erroneous advice rendered to Azumi, Ltd.
(“Count I”) and 2) breach of fiduciary duty by virtue of L&F’s
cover-up of that malpractice (“Count II”).
L&F denies any such wrongdoing and has moved to dismiss the
complaint. It contends that this Court does not have personal
jurisdiction over it consistent with the Massachusetts long-arm
statute, M.G.L. c. 223A, § 3, and the Due Process Clause of the

Fourteenth Amendment to the United States Constitution.
II. Motion to Dismiss
A. Legal Standard
On a motion to dismiss for lack of personal jurisdiction,
plaintiffs bear the burden of showing that the court has
personal jurisdiction over defendant. Cossart v. United Excel
Corp., 804 F.3d 13, 18 (1st Cir. 2015). Where, as here, the
motion is decided without first holding an evidentiary hearing,
the Court applies the “prima facie” standard of review and takes
plaintiffs’
properly documented evidentiary proffers as true and
construe[s] them in the light most favorable to [plaintiffs’]
jurisdictional claim.
A Corp. v. All Am. Plumbing, Inc., 812 F.3d 54, 58 (1st Cir.
2016). A plaintiff cannot rely, however, on “unsupported
allegations” and “must put forward evidence of specific facts to
demonstrate that jurisdiction exists.” Id. (internal citations
omitted); see Vapotherm, Inc. v. Santiago, 38 F.4th 252, 2022
U.S. App. LEXIS 17786, at *6 (1st Cir. June 28, 2022).
In a diversity suit, this Court acts as “the functional
equivalent of a state court sitting in the forum state.” See
Astro–Med, Inc. v. Nihon Kohden America, Inc., 591 F.3d 1, 8
(1st Cir. 2009). As such, this Court must determine whether the
exercise of jurisdiction comports with the Due Process Clause of
the United States Constitution and the Massachusetts long-arm

statute. Id. The two are not coextensive: rather, the
Massachusetts long-arm statute imposes limits upon the exercise
of jurisdiction more restrictive than the demands of
constitutional due process. SCVNGR, Inc. v. Punchh, Inc., 83
N.E.3d 50, 52 (Mass. 2017).
The Massachusetts Supreme Judicial Court (“the SJC”) has
instructed that, in order to avoid unnecessary consideration of
constitutional questions, the personal jurisdiction inquiry
commences with consideration of the long-arm statute. Mojtabai
v. Mojtabai, 4 F.4th 77, 85 (1st Cir. 2021) (citing SCVNGR,
Inc., 85 N.E.3d at 52); see Duggan v. Martorello, No. 18-12277-

JGD, 2022 U.S. Dist. LEXIS 58075, at *30 n.5 (D. Mass. Mar. 30,
2022) (explaining that “unless a challenge under the long-arm
statute has been waived, it is necessary to determine whether
jurisdiction is appropriate under that statute before engaging
in a constitutional analysis”). Only if the statutory
requirements are satisfied should the court consider whether its
exercise of jurisdiction is permitted by the Constitution.
SCVNGR, Inc., 85 N.E.3d at 56; see Exxon Mobil Corp. v. Attorney
General, 94 N.E.3d 786, 792 n.3 (Mass. 2018).
1. Application
The Massachusetts long-arm statute sets forth eight grounds
upon which jurisdiction may be based. M.G.L. c. 223A, § 3(a)-

(h). Subsection 3(a), upon which the plaintiffs rely, provides
for the exercise of jurisdiction over a defendant when the cause
of action at issue arises from its transaction of business in
the Commonwealth. M.G.L. c. 223A, § 3(a); see SCVNGR, Inc., 85
N.E.3d at 55. Accordingly, to establish jurisdiction under
§ 3(a), plaintiff must allege facts which satisfy two
requirements: 1) that defendant transacted business in
Massachusetts and 2) that the claims at issue arose from that
transaction of business. Exxon Mobil Corp., 94 N.E.3d at 793.
Neither condition is met here. Although the transacting-
business requirement is construed broadly, Tatro v. Manor Care,
635 N.E.2d 549, 551 (Mass. 1994), it nevertheless imposes real

limitations, see Lacy v. Jublia Pte LTD., No. 20-P-1319, 2022
Mass. App. Unpub. LEXIS 230, at *7 (Mass. App. Ct. Apr. 1, 2022)
(collecting cases), which L&F’s limited in-forum activity fails
to meet. The Azumi entities proffer a myriad of actions
purportedly connecting L&F to Massachusetts, including 1) its
international legal practice, 2) its representation of Azumi,
Ltd. in the 2007 trademark dispute which included service of
pleadings upon B.B. Kitchen in Massachusetts, 3) a forum
selection clause in the settlement documents, 4) the annual
inspections of Zuma Tex-Mex that L&F arranged and 5) advice
rendered about the right of the Azumi entities to open a Zuma-
branded restaurant in Boston. None of those purported

connections affords jurisdiction. There is no evidence that L&F
regularly advised clients in Massachusetts and, in any event,
Azumi, Ltd. was not one such client. The trademark dispute took
place in Virginia and the settlement was negotiated between L&F
attorneys in Florida and B.B. Kitchen counsel located in New
York, not Massachusetts. Nor did the resulting agreements
contain any reference to Massachusetts beyond 1) the fact that
Zuma Tex-Mex was located there and 2) the prohibition upon Azumi
opening a restaurant in New England. Although the inspections
of Zuma Tex-Mex did occur in Boston, L&F hired a Connecticut-
based contractor to perform them.
Under such circumstances, the Court cannot conclude that

L&F participated in the “economic life” of the Commonwealth. See
Access Now, Inc. v. Otter Prods., LLC, 280 F. Supp. 3d 287, 291
(D. Mass. 2017) (finding transacting-business requirement met
where, inter alia, defendant had $20 million worth of in-forum
sales, had sales representative in forum and was registered to
do business there).
In any event, even if those connections were sufficient to
constitute the transaction of business in Massachusetts,
jurisdiction would not lie because the claims here at issue do
not arise from the alleged in-forum activity. Exxon Mobil Corp.,
94 N.E.3d at 793. A claim arises from a defendant’s transaction
of business if it “was made possible by [it], or lies in [its]

wake”. Access Now, Inc. v. Otter Prods., LLC, 280 F. Supp. 3d
287, 291 (D. Mass. 2017). Put differently, the “arising from”
inquiry asks whether the defendant’s contacts with the forum
“constitute the first step in a train of events” leading to the
injury. Id.
Here, the plaintiffs’ claims do not arise from L&F’s
purported connections to Massachusetts. The negligence and
malpractice alleged by plaintiffs in Count I concerns the
purported failure of L&F 1) to draft consistent Settlement and
License Agreements, 2) to search for and review those agreements
adequately, 3) to advise plaintiffs correctly about their legal
import and 4) to advise plaintiffs timely of mistaken advice.

While some of L&F’s purported forum contacts concern, as a
general matter, the disputed trademark, none of them has any
causal relation to the alleged malpractice here at issue.
Rather, the operative allegations arise either from conduct that
occurred wholly in Florida or advice that was rendered from
Florida and received in London. See B2 Opportunity Fund, LLC v.
Trabelsi, No. 17-10043-RGS, 2017 U.S. Dist. LEXIS 137544, at
*12-14 (D. Mass. Aug. 28, 2017) (citing Sawtelle v. Farrell, 70
F.3d 1381 (1st Cir. 1995)).
The allegations in Count II with respect to an alleged
breach of fiduciary duty arising from the failure of L&F to
disclose its erroneous legal advice are derivative of the

alleged malpractice itself and similarly lack any causal
connection to business allegedly transacted by defendant in
Massachusetts. See Phillips Exeter Acad. v. Howard Phillips
Fund, 196 F.3d 284, 291 (1st Cir. 1999) (“A breach of fiduciary
duty occurs where the fiduciary acts disloyally.”).
In sum, the Massachusetts long-arm statute does not permit
the exercise of personal jurisdiction over L&F. Accordingly,
the Court need not opine on whether an assertion of jurisdiction
would be constitutionally sound. SCVNGR, Inc., 85 N.E.3d at 56;
see Doe v. JetBlue Airways Corp., No. 20-11623-ADB, 2021 U.S.
Dist. LEXIS 145125, at *21-22 (D. Mass. Aug. 3, 2021) (declining
to reach constitutional question where jurisdiction could not be

exercised under long-arm statute).
V. Transfer
Because this Court lacks jurisdiction over L&F, it must
either dismiss the case, as requested by L&F, or transfer it to
the United States District Court for the Southern District of
Florida, as requested by the plaintiffs. Under 28 U.S.C.
§ 1631,
[w]henever a civil action is filed in a court . . . and
that court finds that there is a want of jurisdiction, the
court shall, if it is in the interest of justice, transfer
such action . . . to any other such court . . . in which
the action . . . could have been brought at the time it was
filed[.]
28 U.S.C. § 1631. Section 1631 establishes a presumption in
favor of transfer which is rebutted only if the transfer is “not
in the interest of justice.” Fed. Home Loan Bank of Bos. v.
Moody's Corp., 821 F.3d 102, 119 (1st Cir. 2016) (abrogated on
other grounds by Lightfoot v. Cendant Mortg. Corp., 137 S. Ct.
553 (2017)).
When determining whether a transfer is appropriate, the
Court evaluates 1) whether the action could have been brought in
another federal court, 2) whether a limitations period has run
that would preclude filing in the correct court and 3) whether
the case is frivolous or brought in bad faith. Shelton Bros.,
Inc. v. Three Pirates, LLC, No. 15-30140-MGM, 2017 WL 1227922,
at *6–7 (D. Mass. Mar. 31, 2017) (quoting Britell v. United

States, 318 F.3d 70, 74-75 (1st Cir. 2003)).
Each factor weighs in favor of transfer. The Azumi
entities could have filed this action in the Southern District
of Florida, where the advice giving rise to this malpractice
claim was rendered. Plaintiffs contend that L&F has alluded to
a statute of limitations defense which, if successful, would
preclude their claims. Finally, there is no evidence that
plaintiffs brought their claims in bad faith, nor does L&F make
any such allegation. For those reasons, and because the Court
is satisfied that transfer is in the interest of justice, this
case will be transferred to the Southern District of Florida.
ORDER
In accordance with the foregoing, defendant’s motion to
dismiss for lack of personal jurisdiction in this Court (Docket

No. 10) is DENIED but plaintiffs’ action is hereby TRANSFERRED
pursuant to 28 U.S.C. § 1631 to the United States District Court
for the Southern District of Florida for further proceedings.
So ordered.

__/s/ Nathaniel M. Gorton __
Nathaniel M. Gorton
United States District Judge

Dated: August 16, 2022

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10120845. Public record. Not legal advice.