# Gerow v. Newsom

> District Court, M.D. Florida · July 25, 2024

URL: https://www.frixlaw.com/law-library/cases/10642487

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** July 25, 2024
- **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/10642487

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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 Legislative
Defendants’ Motion to Dismiss the Second Amended Complaint, (Dkt. 67), and
Plaintiff’s response thereto. (Dkt. 124) 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.) Specifically, Plaintiff alleges that in 2015 the California Franchise Tax
Board (the “FTB”) “carried out an illegal interstate seizure of Plaintiff’s bank account,
with no warning or due process.” (Id. at ¶ 167) Plaintiff alleges that at the time of the
seizure, Plaintiff had not lived or worked in California for over a decade and that the
taxes the FTB assessed against Plaintiff were based on an “imputed California earned
income.” (Id. at ¶¶ 168, 170) Plaintiff alleges he “made extensive good-faith attempts

to attempt to resolve the unlawful seizure with the FTB and seek return of his money.”
(Id. at ¶ 169)
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)
Additionally, Plaintiff alleges generally that 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.” (Dkt. 51 at ¶
182)
Plaintiff names the California State Senate, Senate President Pro Tempore Toni
Atkins, the California State Assembly, Erika Contreras, Sheron Violini, and Fred
Zermeno (collectively, the “Legislative Defendants”) as defendants in this action.1
(Id.) Plaintiff asserts various claims against the Legislative Defendants. (See, e.g., id.
at ¶ 420) The Legislative Defendants filed a motion to dismiss the Second Amended

1 Although the Court refers to these defendants collectively as the “Legislative Defendants” in this
Order, Defendants Erika Contreras, Sheron Violini, and Fred Zermeno are not elected legislators.
Rather, they are employees of the California legislature or employees of individual legislators.
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), improper venue under Fed. R.
Civ. P. 12(b)(3), 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
The California State Senate (“Defendant Senate”) and the California State

Assembly (“Defendant Assembly”) are legislative bodies of the State of California
(together, the “California legislature”). (Id. at ¶¶ 416, 421) Defendants Senate and
Assembly exercise direct oversight of the FTB. (Id.) Specifically, the FTB is required
by law to present an annual report to the California legislature “for examination,
review, and corrective action.” (Id.) Additionally, Defendant Senate confirms the

California Governor’s appointees to positions “related to the FTB.” (Id.)
Plaintiff notified Defendants Senate and Assembly of his complaints about the
FTB. (Id. at ¶¶ 417, 422) Despite its mandate to oversee the FTB, Defendants Senate
and Assembly ignored Plaintiff’s complaints. (Id.) Defendant Senate circulated a
“blacklist” about Plaintiff instructing that no member of Defendant Senate should

assist Plaintiff for any reason. (Id. at ¶ 417) Defendant Senate conspired with the other
Defendants to “allow their abusive behavior to go completely unchecked.” (Id.)
Defendant Assembly conspired with the other Defendants to ignore the FTB’s
behavior as long as the FTB came up with large sums of money each year for the use
of Defendant Assembly and its members. (Id. at ¶ 422)
Defendant Toni Atkins (“Defendant Atkins”) is a State Senator for the State of
California and serves as President Pro Tempore of Defendant Senate. (Id. at ¶ 419)
Plaintiff notified Defendant Atkins of his complaints about the FTB several times, but

Defendant Atkins took no action in response to them. (Id.) Moreover, Defendant
Atkins “appeared to have issued an instruction” that members of Defendant Senate
should not help Plaintiff “on any matter whatsoever.” (Id.) Defendant Atkins
conspired with the other Defendants to “allow their behavior to go completely
unchecked, as long as the [FTB] came up with large sums of money each year, some

of which were laundered for the personal use of” Defendant Atkins’s family. (Id.)
Defendant Atkins operates LeSar Consulting, a “‘nonprofit’ entity controlled by
[Defendant Atkins’s spouse] that siphons money from the California state treasury to
the pockets of her own family.” (Id. at ¶ 108) LeSar Consulting offers “bogus
‘consulting services’” related to homelessness to California state agencies. (Id.) LeSar

Consulting serves “as a conduit to channel money stolen from Plaintiff and others into
the pockets of Defendants, while providing nothing of value.” (Id. at ¶ 109) “The more
money that is stolen by the [FTB], the larger the pool of money available for
Defendants to divert for their personal use through ‘nonprofits’ controlled by family
members.” (Id.)

Defendant Erika Contreras (“Defendant Contreras”) serves as the Secretary of
Defendant Senate. (Id. at ¶ 424) In this capacity, Defendant Contreras serves as chief
legal counsel to Defendant Senate and is responsible for investigating and remedying
complaints made to Defendant Senate about matters within Defendant Senate’s
control. (Id.) “Defendant Contreras was made aware of Plaintiff’s complaints
numerous times but failed to assist.” (Id.) Defendant Contreras “apparently”
instructed other government officials not to assist Plaintiff. (Id.) Defendant Contreras

conspired with the other Defendants to silence Plaintiff’s complaint and not to use her
office to facilitate any investigation of the other Defendants in exchange for “the
generous salary and perks of her government position.” (Id.)
Defendant Sheron Violini (“Defendant Violini”) served as Deputy Secretary of
Operations for Defendant Senate from 2008 until August 2021. (Id. at ¶ 425) In her

role as Deputy Secretary of Operations, Defendant Violini was responsible for assisting
members of the public with their complaints about state agencies and state legislators.
(Id.) Because of her position, Defendant Violini “had the almost unlimited resources
of the California state government at her disposal to resolve any matter, large or
small.” (Id.) Nonetheless, Defendant Violini did not assist Plaintiff with his

complaints. (Id.) Instead, “Defendant Violini apparently issued or participated in
implementing instructions that no elected official or State agency was to help Plaintiff
with his complaint or any other complaint he may have in the future[.]” (Id.)
Defendant Violini conspired with the other Defendants in exchange for “the generous
salary and perks of her government position.” (Id.)

Defendant Fred Zermeno (“Defendant Zermeno”) is an employee of Defendant
Senate. (Id. at ¶ 427) Defendant Zermeno works in the office of Senator Bob
Archuleta, who sits on the Senate Committee of Veteran’s Affairs. (Id.) Plaintiff is an
honorably discharged veteran, so he contacted Senator Bob Archuleta’s office. (Id.)
Defendant Zermeno did not assist Plaintiff. (Id.) Instead, he used his position “to
quash Plaintiff’s legitimate complaint under color of law.” (Id.)
II. LEGAL STANDARDS

a. 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.
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).
III. DISCUSSION

The Court finds Plaintiff’s claims against the Legislative Defendants must be
dismissed for lack of personal jurisdiction and for failure to state a claim.
a. Lack of Personal Jurisdiction
Plaintiff fails to establish a prima facie case of personal jurisdiction as to
Legislative Defendants. 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
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.
i. Personal Jurisdiction Under 18 U.S.C. § 1965

Plaintiff cannot establish personal jurisdiction over the Legislative Defendants
under 18 U.S.C. § 1965 because he has not served process on the Legislative
Defendants. Plaintiff seeks to establish personal jurisdiction over the Legislative
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
the statute. S.E.C. v. Marin, 982 F.3d at 1349; S.E.C. v. Carrillo, 115 F.3d 1540, 1543

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.
(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 Legislative 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. Accordingly, 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 Legislative 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 the Legislative 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

Legislative Defendants.
Similarly, Plaintiff fails to establish a prima facie case of specific personal
jurisdiction because Plaintiff does not allege the Legislative Defendants purposefully
directed any of their activities to Florida. Plaintiff alleges the Legislative Defendants

received Plaintiff’s complaints about the FTB in California and ignored them. Plaintiff
also alleges certain of Legislative Defendants instructed members of Defendant Senate
not to assist Plaintiff with his complaints. Finally, Plaintiff alleges the Legislative
Defendants conspired with the other Defendants to allow “abusive” practices to go
unchecked. Taken as true, these acts or omissions, which allegedly establish the

Legislative Defendants’ liability, occurred within California. According to Plaintiff’s
allegations, the Legislative 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
Legislative 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.

iii. Personal Jurisdiction Comporting With Due Process
Plaintiff similarly fails to establish the Legislative 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 Legislative
Defendants have sufficient minimum contacts with Florida. Plaintiff alleges the

Legislative Defendants received Plaintiff’s complaints about the FTB in California and
ignored them. Plaintiff also alleges certain of the Legislative Defendants instructed
members of Defendant Senate not to assist Plaintiff with his complaints. Finally,
Plaintiff alleges the Legislative Defendants conspired with the other Defendants to
allow “abusive” practices to go unchecked. These actions did not take place in Florida.

Based on Plaintiff’s own allegations, the Legislative 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 Legislative
Defendants have minimum contacts with Florida sufficient to satisfy the Due Process
Clauses of the Fifth and Fourteenth Amendments.
Therefore, Plaintiff fails to establish a prima facie case of this Court’s personal
jurisdiction over the Legislative Defendants, and Plaintiff’s claims as to the Legislative
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).
Nonetheless, assuming, arguendo, this Court had personal jurisdiction over the
Legislative Defendants, the Complaint is due to be dismissed for failure to state a
claim.

b. Failure to State a Claim
Plaintiff fails to sufficiently plead that the Legislative Defendants violated any
legally cognizable duty owed to him. Plaintiff alleges generally that the Legislative
Defendants failed to address his complaints, and that certain of the Legislative

Defendants instructed others not to assist him with his complaints. These factual
allegations do not state a claim for any legal redress. First, as for those of the
Legislative Defendants who are elected legislators, the Complaint sets forth no
constitutional or statutory requirement that legislators respond to their constituents’
complaints. See DeGenes v. Murphy, 289 F. App’x 558, 559 (3d Cir. 2008), cert.

denied, 556 U.S. 1269 (2009). Moreover, even if Plaintiff pleaded that these legislators’
alleged actions or omissions breached a legally cognizable duty, the defendant-
legislators are entitled to legislative immunity. “Legislators have absolute immunity
under section 1983 when they are ‘acting within their legislative roles,’ performing
‘legislative acts.’” Woods v. Gamel, 132 F.3d 1417, 1419 (11th Cir. 1998) (citations
omitted). While the immunity “‘extends only to actions taken within the sphere of
legitimate legislative activity[,]’” id. (citations omitted), the decision to respond to
complaints from constituents falls within the sphere of legislative activity. See

Marlowe v. Guzman, No. 22-CV-1003, 2023 WL 2606607, at *6 (M.D. Penn. Mar. 2,
2023) (“Helping constituents is clearly related to the core Speech or Debate duties of
a senator and should be protected by immunity.”). Thus, the defendant-legislators are
absolutely immune from suit for their decision not to respond to or to try to ameliorate
Plaintiff’s complaints.

As for those of the Legislative Defendants who are employees of the California
state legislature or employees of individual legislators, Plaintiff sets forth no common
law duty owed to him that was breached by the alleged conduct.
Finally, although Plaintiff alleges Defendant Atkins’s spouse owns a consulting
company that launders money obtained by the FTB, Plaintiff fails to allege standing

to sue Defendant Atkins for this alleged activity. To establish the injury in fact element
of standing, “a plaintiff must show that he or she suffered ‘an invasion of a legally
protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not
conjectural or hypothetical.’” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)
(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). An injury is

particularized if it “affect[s] the plaintiff in a personal and individual way,” and is not
“‘undifferentiated.’” Id. at 339 (citations omitted). Plaintiff alleges Defendant Atkins’s
spouse’s consulting firm “siphons money from the California state treasury to the
pockets of her own family.” (Dkt. 51 at ¶ 108) If true, this allegation presents an
undifferentiated injury to the California public that is not particularized to Plaintiff.
Thus, Plaintiff fails to allege standing as to this allegation against Defendant Atkins.
Plaintiff fails to plead grounds for his entitlement to relief, therefore, the
Complaint is due to be dismissed.
IV. CONCLUSION
Upon consideration of the foregoing, it is hereby ORDERED:
1. Legislative Defendants’ Motion to Dismiss the Second Amended
Complaint, (Dkt. 67), is GRANTED for lack of personal jurisdiction.
2. The Second Amended Complaint is DISMISSED WITHOUT
PREJUDICE as to the Legislative Defendants. THE ACTION MAY
NOT BE REFILED IN THIS COURT.

DONE and ORDERED in Tampa, Florida this 25th day of June 2024.
fi | 1
JS / 1 Bes tn
MARY\S. SGRIVEN
UNITED STATES DISTRICT JUDGE

Copies furnished to:
Counsel of Record
Any Unrepresented Party

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10642487. Public record. Not legal advice.