Gerow v. Newsom

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ERIC GEROW,

Plaintiff,

v. Case No: 8:22-cv-2976-MSS-JSS

GAVIN NEWSOM, et al.,

Defendants.

ORDER

THIS CAUSE comes before the Court for consideration of the California

Executive Branch Defendants’ Motion to Dismiss the Second Amended Complaint,

(Dkt. 68), and Plaintiff’s response thereto. (Dkt. 125) Upon consideration of all

relevant filings, case law, and being otherwise fully advised, the Court GRANTS

Defendants’ Motion.

I. BACKGROUND

a. Procedural Background

On October 16, 2023, Plaintiff filed the Second Amended Complaint in this

action against 51 named defendants, as well as “Jane or John Does 1–100.” (Dkt. 51)

Plaintiff, proceeding pro se, alleges Defendants participated in a conspiracy to seize

Plaintiff’s property unlawfully on the basis that Plaintiff failed to pay California state

taxes. (Id.)

Among others, Plaintiff names the following individuals and entities as

defendants in this action: Governor Gavin Newsom, the California Department of

Justice, Rob Bonta, the California State Transportation Agency, Toks Omishakin, the

California Highway Patrol, Amanda Ray, Warren Stanley, the California

Government Operations Agency, Amy Tong, Marybel Batjer, the California State

Controller’s Office, Betty Yee, Richard Chivaro, Shawn Silva, Yvette Stowers, the

California Department of Finance, Joe Stephenshaw, Keely Bosler, Estella Simoneau,

Antonio Vasquez, Malia Cohen, Vikram Mandla, Selvi Stanislaus, Jozel Brunett,

Margarita Esquivido, Erik Scheidegger, Brenda Voet, the California Department of

General Services, Ana Lasso, Nick Wagner, the Little Hoover Commission, and the

California Office of Tax Appeals. (Id.) The Court refers to these defendants collectively

in this Order as the “California Defendants.” Also named as a defendant in the

Complaint is the California Franchise Tax Board (“Defendant FTB”). (Id.)

Plaintiff asserts various claims against the California Defendants. (See, e.g., id.

at ¶ 415) Specifically, Plaintiff alleges each of the California Defendants is either

directly or indirectly liable for the same thirty-four causes of action. For example,

Plaintiff raises the following counts against Defendant Governor Gavin Newsome:

Violation of 1st Amendment Rights: Freedom of Speech; Violation of 1st Amendment

Rights: Freedom to Petition; Violation of 1st Amendment Rights: Freedom of

Assembly Violation of 4th Amendment Rights, Search and Seizure; Violation of 5th

Amendment Rights, Due Process; Violation of 6th Amendment Rights, Due Process;

Violation of 8th Amendment Rights: Excessive Fines; Violation of 14th Amendment

Rights: Due Process; Violation of Article 1, Section 8, Clause 3 of the U.S.

Constitution (the "Commerce Clause"); Violation of Article 1, Section 10 of the U.S.

Constitution ("Bill of Attainder"); Violation of Civil Rights Act of 1871; 42 U.S.C. §

1983 et seq. ("Deprivation of Rights"); Violation of Florida Statutes § 895.01-895.06

(“Florida RICO Act"); Violation of 18 U.S.C. § 241 et seq. ("Conspiracy against

Rights"); Violation of 18 U.S.C. § 242 et seq. ("Deprivation of rights under color of

law"); Violation of 18 U.S.C. Chapter 96 et seq. (the "Racketeer Influenced and

Corrupt Organizations Act"); Violation of 18 U.S.C. § 1343 et seq. ("Fraud by wire,

radio, or television"); Violation of 18 U.S.C. § 1341 et seq. ("Mail Fraud"); Violation

of 18 U.S.C. § 1344 et. seq. ("Bank Fraud"); Violation of 18 U.S.C. § 371 et. seq.

("Conspiracy"); Violation of 18 U.S.C. § 2314 et. seq. ("Interstate Transportation of

Stolen Goods"); Violation of 18 U.S.C. § 2315 et. seq. ("Sale or Receipt of Stolen

Goods, Securities, Moneys"); Violation of 18 U.S.C. § 371 et. seq. ("Conspiracy to

Violate the Mail Fraud or Wire Fraud Statutes"); Violation of 18 U.S.C. § 1951 et. seq.

(the "Hobbs Act"); Intentional Infliction of Emotional Distress; Negligent Infliction of

Emotional Distress; Conversion; Fraud; Violation of 18 U.S. Code § 2331(5)

"Domestic Terrorism"; Violation of California Civil Code § 52.1 ("The Tom Banes

Civil Rights Act"); Violation of Article 1, Section 23 of the Florida State Constitution,

"The Right to Privacy"; Violation of 5th Amendment Rights: "The Takings Clause";

Abuse of Process; and Unjust Enrichment.

Plaintiff does not list causes of action alleged against Defendant FTB but does

request a declaratory judgment that Defendant FTB’s seizure practices violate the

Constitution. (Dkt. 51 at 272–73) Plaintiff also requests this Court order the U.S.

Department of Justice to review Defendant FTB’s seizure practices. (Id. at 273)

Moreover, Plaintiff requests the Court enjoin “any and all seizure activities by the

[FTB]” until the FTB complies with the Constitution. (Id. at 274)

The California Defendants and Defendant FTB jointly filed a motion to dismiss

the Second Amended Complaint for lack of subject matter jurisdiction under Fed. R.

Civ. P. 12(b)(1), lack of personal jurisdiction under Fed. R. Civ. P. 12(b)(2), and failure

to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6).

In support of his claims, Plaintiff alleges the following facts.

b. Alleged Facts

In 2015, “the tax collection agency of the State of California,” (id. at ¶ 87),

Defendant FTB, “carried out an illegal interstate seizure of Plaintiff’s bank account,

with no warning or due process.” (Id. at ¶ 167) At the time of the seizure, Plaintiff had

not lived or worked in California for over a decade and the taxes Defendant FTB

assessed against Plaintiff were based on an “imputed California earned income.” (Id.

at ¶¶ 168, 170) To find this imputed California income, Defendant FTB “calculate[es]

an imaginary number . . . that may hypothetically have been earned by someone in

the State of California, had a taxpayer resided in the State of California. It is not based

on facts, actual income, or the actual residence of the taxpayer.” (Id. at ¶ 170)

Meanwhile, Defendant FTB knew Plaintiff had not resided in California for over a

decade and knew that Plaintiff had no imputed earned California income. (Id. at ¶

172) Plaintiff “made extensive good-faith attempts to attempt to resolve the unlawful

seizure with the FTB and seek return of his money.” (Id. at ¶ 169)

Defendant FTB “had a duty of care to act with proper diligence and make

proper inquiries and due diligence before assigning Plaintiff a tax liability” or levying

his bank account. (Id. at ¶ 172) Defendant FTB “admitted in writing that the seizure

had been based on multiple FTB mistakes, errors, and omissions.” (Id. at ¶ 174) Later,

Defendant FTB covered up the evidence of these mistakes and refused to release their

documentation to Plaintiff in violation of California’s Public Records Act. (Id.)

In 2018 after many fruitless attempts to reason with the FTB and obtain his

illegally seized funds, Plaintiff contacted elected representatives and law

enforcement to file a complaint about the unlawful FTB seizure. Shortly after

Plaintiff filed these complaints the FTB again emptied Plaintiff's bank account

for a second time to the last penny.

(Id. at ¶ 175) This second seizure was retaliation for lodging complaints against

Defendant FTB. (Id. at ¶ 177) Since then, “the FTB has maintained a constant posture

of harassing Plaintiff[,]” and “has sent Plaintiff numerous demand notices with

increasingly wild figures allegedly owed[.]” (Id. at ¶ 178)

“In an attempt to resolve the situation, Plaintiff contacted other California state

agencies, officers, and elected officials who had legally mandated oversight

responsibility for the FTB[.] In every case[,] his attempts at resolution were ignored or

rebuffed.” (Id. at ¶ 181) These agencies, officers, and officials, including the California

Defendants, “acted in direct collusion with the FTB to deprive Plaintiff of his right to

redress.” (Id.) “Defendants entered into a conspiracy among themselves to effect a ban

on any assistance or redress to Plaintiff, in violation of Plaintiff's constitutional rights.”

(Id.)

Defendants “conspired with each other to begin a campaign of harassment of

Plaintiff . . . to terrorize Plaintiff into silence, to retaliate against Plaintiff for filing

complaints, and to bully Plaintiff into abandoning his legitimate complaints and his

unlawfully seized funds.” (Id. at ¶ 182)

II. LEGAL STANDARDS

a. Lack of Subject Matter Jurisdiction

Federal courts are courts of limited jurisdiction. “[B]ecause a federal court is

powerless to act beyond its statutory grant of subject matter jurisdiction, a court must

zealously [e]nsure that jurisdiction exists over a case[.]” Smith v. GTE Corp., 236 F.3d

1292, 1299 (11th Cir. 2001). Motions to dismiss for lack of subject matter jurisdiction

pursuant to Fed. R. Civ. P. 12(b)(1) may attack jurisdiction facially or factually.

Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003). If the challenge is

facial, the court merely evaluates whether the plaintiff has sufficiently alleged a basis

for subject matter jurisdiction, and the allegations in the complaint are taken as true

for the purposes of the motion. McElmurray v. Consol. Gov. of Augusta-Richmond

Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007).

b. Failure to State a Claim

To survive a motion to dismiss for failure to state a claim under Federal Rule of

Civil Procedure 12(b)(6), a complaint must meet an exceedingly low threshold of

sufficiency. Quality Foods de Centro Am., S.A. v. Latin Am. Agribusiness Dev.

Corp., S.A., 711 F.2d 989, 995 (11th Cir. 1983). A plaintiff must plead only enough

facts to state a claim to relief that is plausible on its face. Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 560–64 (2007) (abrogating the “no set of facts” standard for

evaluating a motion to dismiss established in Conley v. Gibson, 355 U.S. 41, 45–46

(1957)). Although a complaint challenged by a Rule 12(b)(6) motion to dismiss does

not need detailed factual allegations, a plaintiff is still obligated to provide the

“grounds” for his entitlement to relief, and “a formulaic recitation of the elements of

a cause of action will not do.” Berry v. Budget Rent A Car Sys., Inc., 497 F. Supp. 2d

1361, 1364 (S.D. Fla. 2007) (quoting Twombly, 550 U.S. at 545). In light of a motion

to dismiss, to evaluate the sufficiency of a complaint a court must accept the well

pleaded facts as true and construe them in the light most favorable to the plaintiff.

Quality Foods, 711 F.2d at 994–95. However, the court should not assume that the

plaintiff can prove facts that were not alleged. Id. Thus, dismissal is warranted if,

assuming the truth of the factual allegations of the plaintiff’s complaint, there is a

dispositive legal issue that precludes relief. Neitzke v. Williams, 490 U.S. 319, 326

(1989).

c. Lack of Personal Jurisdiction

Federal Rule of Civil Procedure 12(b) permits a party to assert various defenses,

including the defense of lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). In the

complaint, a plaintiff must make a prima facie showing of personal jurisdiction over a

non-resident defendant. See AcryliCon USA, LLC v. Silikal GmbH, 985 F.3d 1350,

1364 (11th Cir. 2021). “A prima facie case is established if the plaintiff presents 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). “If the plaintiff

pleads enough facts to state a prima facie basis for personal jurisdiction, the burden of

proof shifts to the defendant to challenge the plaintiff's allegations by affidavits or other

pleadings.” PROCON USA COLLECTIONS, INC. v. Charnquist, No. 14–cv–02560,

2015 WL 1418757, at *1 (M.D. Fla. Mar. 27, 2015) (citing S.E.C. v. Carrillo, 115 F.3d

1540, 1542 (11th Cir. 2006)). “If the defendant sufficiently challenges the plaintiff's

assertions, then the plaintiff must affirmatively support its jurisdictional allegations set

forth in the complaint[.]” Id.

III. DISCUSSION

The California Defendants and Defendant FTB move to dismiss the Complaint

for several reasons. First, they argue that to the extent Plaintiff’s claims request relief

which would enjoin, suspend, or restrain the assessment or collection of California

state taxes, those claims must be dismissed for lack of subject matter jurisdiction.

Specifically, they argue that all of Plaintiff’s requests for relief as to Defendant FTB

must be dismissed because this Court lacks jurisdiction under the Tax Injunction Act,

28 U.S.C. § 1341. Next, the California Defendants contend that the causes of action

alleged against many of them must be dismissed for failure to state a claim. The

California Defendants also argue Plaintiff fails to establish this Court’s personal

jurisdiction over them, Plaintiff lacks Article III standing, and sovereign immunity

bars the relief Plaintiff seeks.

a. Lack of Subject Matter Jurisdiction: Tax Injunction Act

The California Defendants and Defendant FTB argue that the Tax Injunction

Act deprives this Court of jurisdiction to order relief which would interfere with the

FTB’s collection of state taxes. The Tax Injunction Act states, “The district courts shall

not enjoin, suspend or restrain the assessment, levy or collection of any tax under State

law where a plain, speedy and efficient remedy may be had in the courts of such State.”

28 U.S.C. § 1341. “The Tax Injunction Act is a ‘jurisdictional rule’ and constitutes a

‘broad jurisdictional barrier.’” I.L. v. Alabama, 739 F.3d 1273, 1282 (11th Cir. 2014)

(quoting Moe v. Confederated Salish & Kootenai Tribes of Flathead Rsrv., 425 U.S.

463, 470 (1976)). The Act “restricts the power of federal district courts to prevent

collection or enforcement of state taxes.” Arkansas v. Farm Credit Servs. of Cent.

Ark., 520 U.S. 821, 823 (1997). Even when “important constitutional rights are at

issue,” district courts lack jurisdiction to review disputes which concern taxes under

state law if an adequate state remedy exists. Miami Herald Pub. Co. v. City of

Hallandale, 734 F.2d 666, 672–73 (11th Cir. 1984) (citing California v. Grace Brethren

Church, 457 U.S. 393 (1983)) (“Nor is the jurisdictional bar to challenging state tax

laws in federal courts avoided when suit is brought under 42 U.S.C. § 1983.”).

The Tax Injunction Act bars federal jurisdiction if: “(1) the relief requested by

the plaintiff will ‘enjoin, suspend, or restrain’ a state tax assessment and (2) the state

affords the plaintiff a ‘plain, speedy and efficient remedy[.]’” Williams v. City of

Dothan, 745 F.2d 1406, 1411 (11th Cir. 1984). Plaintiff requests a declaratory

judgment that Defendant FTB’s seizure practices violate the Constitution. (Dkt. 51 at

272–73) Plaintiff also requests this Court order the U.S. Department of Justice to

review Defendant FTB’s seizure practices. (Id. at 273) Moreover, Plaintiff requests the

Court enjoin “any and all seizure activities by the [FTB]” until Defendant FTB

complies with the Constitution. (Id. at 274) Plaintiff also requests the Court order the

return of funds that were collected from Plaintiff through a state tax bank levy. (Id. at

275) Under the Tax Injunction Act, this Court lacks jurisdiction to grant Plaintiff’s

requested relief unless there is no “plain, speedy and efficient remedy” in the state

court.

California law provides a plain, speedy, and efficient remedy to Plaintiff’s claim

that Defendant FTB has assessed and collected taxes against him wrongfully. Hyatt v.

Yee, 871 F.3d 1067, 1074–78 (9th Cir. 2017). “[T]he test of an adequate state court

procedure is whether it provides taxpayers ‘with a “full hearing and judicial

determination” at which [they] may raise any and all constitutional objections to the

tax.’” Williams, 745 F.2d at 1412 (quoting Rosewell v. LaSalle Nat’l Bank, 450 U.S.

503, 514 (1981)). Cf. id. (finding Alabama’s remedy inadequate because the state

court’s jurisdiction to review objections to tax assessments was limited by statute,

preventing taxpayers from obtaining a full hearing and judicial determination of

constitutional claims in state court). In California, a taxpayer who seeks to “prevent

or enjoin the assessment or collection” of a California residency-based income tax

must exhaust administrative remedies before filing suit in state court. Cal. Rev. & Tax.

Code § 19381 (2024).

If the Tax Board acts on the challenger's refund claim and denies it, a taxpayer

“claiming that the tax computed and assessed is void . . . may bring an action

[in state court], upon the grounds set forth in that claim for refund . . . for the

recovery of the . . . amount paid” plus interest.

Hyatt, 871 F.3d at 1070–71 (citing Cal. Rev. & Tax. Code § 19382 (2024)). California

law permits constitutional claims to be raised as challenges to tax computations or

assessments. Id. at 1077 (citations omitted). Thus, California provides taxpayers with

a full hearing at which they may raise any and all constitutional objections to the tax,

and it provides an avenue for subsequent judicial determination. Williams, 745 F.2d

at 1412 (citations omitted). For this reason, the Tax Injunction Act bars this Court

from reaching the merits of Plaintiff’s claims to the extent they seek to enjoin or

restrain California’s assessment or collection of state taxes.

For these reasons, the Complaint is DISMISSED WITH PREJUDICE for lack

of subject matter jurisdiction as to Defendant FTB. To the extent Plaintiff’s claims

against the California Defendants request relief such that this Court’s exercise of

jurisdiction would violate the Tax Injunction Act, those claims are also due to be

DISMISSED.

California state court is the forum for Plaintiff’s claims related to his challenges

to California’s state taxes. Any and all adverse decisions rendered in the state court

would be appealable to the highest court in California, and then to the United States

Supreme Court.

b. Failure to State a Claim

Plaintiff fails to plead grounds for his entitlement to relief against the California

Defendants, therefore, the Complaint against these Defendants is due to be dismissed.

For most of the California Defendants, Plaintiff asserts merely that the defendant

ignored or failed to respond to Plaintiff’s complaints about the FTB’s alleged pattern

of unconstitutional conduct.1 These allegations do not set forth a breach of any

common law or statutory duty owed to Plaintiff. For some defendants, Plaintiff adds

to these allegations that the defendants conspired with other defendants to let “abusive

conduct continue unimpeded.” (See, e.g., Dkt. 51 at ¶ 429) Also, for some defendants,

Plaintiff adds that the defendant falsified documents to cover up Plaintiff’s complaints.

(See, e.g., id. at ¶ 452, 460) Without more detail, these allegations do not state a

plausible claim for relief. Twombly, 550 U.S. at 560–64. These allegations fail to state

a claim for relief, thus, they are due to be dismissed.

a. Lack of Personal Jurisdiction

Assuming, arguendo, Plaintiff stated a claim for relief against any of the

California Defendants, Plaintiff fails to establish a prima facie case of personal

jurisdiction over them. To determine personal jurisdiction over a non-resident

defendant, courts use a two-part analysis. Cable/Home Commc’n Corp. v. Network

Prods., Inc., 902 F.2d 829, 855 (11th Cir. 1990). First, the court must determine

whether a statutory basis for personal jurisdiction over the defendant exists. See id.;

S.E.C. v. Marin, 982 F.3d 1341, 1349 (11th Cir. 2020). Next, the court must decide

whether sufficient “minimum contacts” exist to satisfy the Due Process Clause of the

1 See the allegations related to the claims against the following defendants: California Department of

Justice, Attorney General Rob Bonta, Defendant Secretary Toks Omishaken, Commissioner Amanda

Ray, Commissioner Warren Stanley, California Government Operations Agency, Secretary Amy

Tong, Marybel Batjer, California State Controller, Shawn Silva, Yvette Stowers, Richard John

Chivaro, California Department of Finance, Joe Stephenshaw, Keely Bosler, Estella Simoneau,

Antonio Vasquez, Malia Cohen, Selvi Stanislaus, Jozel Brunett, Margeurite Esquivido, Erik

Scheidegger, Brenda Voet, California Department of General Services, Ana M. Lasso, Nick Wagner,

and Little Hoover Commission.

either the Fifth or the Fourteenth Amendments.2 Cable/Home Commc’n Corp., 902

F.2d at 855 (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). The

“maintenance of the suit” must not “offend traditional notions of fair play and

substantial justice.” Id. (internal quotations omitted). If the complaint lacks allegations

to show jurisdiction is appropriate under either part of the analysis, the plaintiff fails

to establish a prima facie case of personal jurisdiction.

Plaintiff makes no specific allegations to establish this Court’s personal

jurisdiction over the California Defendants. Rather, Plaintiff’s allegations related to

personal jurisdiction generally refer to all Defendants named in the Complaint.

Plaintiff alleges this Court has personal jurisdiction over all Defendants under 18

U.S.C. § 1965 and under Florida’s long-arm statute.

i. Personal Jurisdiction Under 18 U.S.C. § 1965

Plaintiff cannot establish personal jurisdiction over the California Defendants

under 18 U.S.C. § 1965 because he has not served process on the California

Defendants.3 Plaintiff seeks to establish personal jurisdiction over the California

Defendants under the RICO statute’s nationwide service of process provision. 18

U.S.C. § 1965(d). When a federal statute provides for nationwide service of process, it

becomes the statutory basis for personal jurisdiction over a person served according to

2 If the statutory basis for personal jurisdiction is a federal statute, personal jurisdiction must comport

with the Due Process Clause of the Fifth Amendment. If, however, the statutory basis for personal

jurisdiction is the forum state’s long-arm statute, personal jurisdiction must comport with the Due

Process Clause of the Fourteenth Amendment. S.E.C. v. Marin, 982 F.3d at 1349.

3 Plaintiff only served process on Defendant California State Auditor, (Dkt. 17), Victor Keesey, (Dkt.

21), Timothy Johnstone, (Dkt. 22), Philip A. Talbert, (Dkt. 23), and Anne Marie Schubert. (Dkt. 24)

None of these defendants are one of the California Defendants. (Dkt. 68 at 1 n.1)

the statute. S.E.C. v. Marin, 982 F.3d at 1349; S.E.C. v. Carrillo, 115 F.3d 1540, 1543

(11th Cir. 1997) (explaining “service of process constitutes the vehicle by which the

court obtains jurisdiction”). To establish personal jurisdiction in this way, a plaintiff

must serve the defendant “‘according to’ RICO’s nationwide service of process

provision.” Don’t Look Media LLC v. Fly Victor Ltd., 999 F.3d 1284, 1292–93 (11th

Cir. 2021) (finding personal jurisdiction based on 18 U.S.C. § 1965(d) inappropriate

where the plaintiff did not serve any defendant in any United States judicial district).

The California Defendants have not been served with process in this case. Therefore,

they have not been served “‘according to’ RICO’s nationwide service of process

provision.” Id. Consequently, Plaintiff cannot establish personal jurisdiction under 18

U.S.C. § 1965(d).

ii. Personal Jurisdiction Under the Forum State’s Long-Arm

Statute

Plaintiff similarly fails to establish personal jurisdiction based on Florida’s long-

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

jurisdiction. § 48.193, Fla. Stat. (2023). A court has general personal jurisdiction if the

defendant engaged in “substantial and not isolated” activity in Florida. Id. at §

48.193(2). Florida courts have held that “substantial and not isolated activity” means

“continuous and systematic general business contact” with Florida. Autonation, Inc.

v. Whitlock, 276 F. Supp. 2d 1258, 1262 (S.D. Fla. 2003). On the other hand, a Florida

court may exercise specific personal jurisdiction if the defendant deliberately directed

activities to Florida and the alleged injury to the plaintiff arises from those activities.

See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985); see also § 48.193(1),

Fla. Stat. (2023) (listing acts which, if committed in Florida, give rise to specific

personal jurisdiction over the person or entity that committed them).

Plaintiff alleges no facts to show the California Defendants are subject to

Florida’s long-arm statute. First, Plaintiff fails to establish a prima facie case of this

Court’s general personal jurisdiction under Florida’s long-arm statute because Plaintiff

alleges no specific facts to support the conclusion that any of the California Defendants

are engaged in “continuous and systematic” activity in Florida. Therefore, the

Complaint contains no allegations to support this Court’s general personal jurisdiction

over the California Defendants.

Similarly, Plaintiff fails to establish a prima facie case of specific personal

jurisdiction. Plaintiff never alleges any of the California Defendants purposefully

directed activities to Florida. For most of the California Defendants, Plaintiff asserts

merely that the defendant ignored or failed to respond to Plaintiff’s complaints about

the FTB’s alleged pattern of misconduct.4 For some defendants, Plaintiff adds to these

allegations that the defendants conspired with other defendants to let “abusive conduct

continue unimpeded.” (See, e.g., Dkt. 51 at ¶ 429) For some defendants, Plaintiff adds

that the defendant falsified documents to cover up Plaintiff’s complaints. (See, e.g., id.

at ¶ 452, 460) Or, for example, Plaintiff alleges Defendant California Highway Patrol,

at Defendant Betty Yee’s direction, “stalked and harassed Plaintiff at a . . . public event

4 See supra note 3.

in Sacramento[.]” (Id. at ¶¶ 435, 444) Taken as true, the acts or omissions of the

California Defendants Plaintiff alleges in the Complaint to establish liability occurred

within California.

According to Plaintiff’s allegations, the California Defendants have not

purposefully directed any of their activities to Florida. Therefore, this Court finds

Plaintiff fails to establish a prima facie case of specific personal jurisdiction under

Florida’s long-arm statute as to the California Defendants. Finding the exercise of

neither general nor specific jurisdiction appropriate under the statute, the Court

concludes Plaintiff fails to satisfy the first part of the analysis regarding whether this

Court’s exercise of personal jurisdiction is appropriate over these defendants.

iii. Personal Jurisdiction Comporting With Due Process

Plaintiff similarly fails to establish the California Defendants have sufficient

minimum contacts with Florida such that this Court’s exercise of personal jurisdiction

would not offend traditional notions of fair play and substantial justice. To satisfy the

requirements of due process, the defendant must have sufficient “minimum contacts”

with the forum state. Cable/Home Commc’n Corp., 902 F.2d at 855 (quoting Int’l

Shoe Co., 326 U.S. at 316).

This Court finds Plaintiff has not alleged sufficient facts to show the California

Defendants have sufficient minimum contacts with Florida. As discussed supra, based

on Plaintiff’s own allegations, the California Defendants have not committed any act

by which they purposefully availed themselves of the privilege of conducting activities

in Florida. For this reason, Plaintiff fails to establish the California Defendants have

minimum contacts with Florida sufficient to satisfy the Due Process Clauses of the

Fifth and Fourteenth Amendments.

Thus, Plaintiff fails to establish a prima facie case of this Court’s personal

jurisdiction over the California Defendants, and Plaintiffs claims as to these

defendants are due to be DISMISSED WITHOUT PREJUDICE. See Posner v.

Essex Ins. Co., Ltd., 178 F.3d 1209, 1221 (11th Cir. 1999) (noting dismissal for lack

of personal jurisdiction without prejudice precludes further litigation in Florida

courts).

IV. CONCLUSION

Upon consideration of the foregoing, it is hereby ORDERED:

1. The California Executive Branch Defendants’ Motion to Dismiss the

Second Amended Complaint, (Dkt. 68), is GRANTED.

2. The Second Amended Complaint is DISMISSED WITH PREJUDICE

as to Defendant California Franchise Tax Board for lack of subject matter

jurisdiction pursuant to the Tax Injunction Act.

3. The Second Amended Complaint is DISMISSED WITHOUT

PREJUDICE as to the California Defendants for lack of personal

jurisdiction.

DONE and ORDERED in Tampa, Florida this 24th day of July 2024.

Vi}

MARY\S. SGRIVEN

17 UNITED STATES DISTRICT JUDGE

Copies furnished to:

Counsel of Record

Any Unrepresented Party