Pavone

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

JOSEPH PAVONE, PAMELA

LANG,

Plaintiffs,

Case No. 2:24-cv-1054-KCD-NPM

v.

AMERICAN CONTRACT

SYSTEMS, INC., OWENS &

MINOR, INC.,

Defendants.

/

ORDER

This toxic tort case arises from exposure to ethylene oxide (“EtO”) near

a sterilization plant in Fort Myers, Florida. Defendants American Contract

Systems, Inc. (“ACS”) and Owens & Minor, Inc. (“OMI”) allegedly own and

operate the facility. Plaintiffs Joseph Pavone and Pamela Lang live within a

mile of the plant. Pavone has developed non-Hodgkin’s lymphoma, purportedly

due to chronic exposure to dangerous levels of EtO. Pavone brings claims for

negligence and ultrahazardous activity against both Defendants, while Lang

seeks loss of consortium damages for the injuries to her husband. (Doc. 42.)

OMI has moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(2),

arguing it lacks the contacts needed for personal jurisdiction in this forum.

(Doc. 48.) For the reasons below, the motion is GRANTED.

I. Legal Standard

Rule 12(b)(2) “governs motions to dismiss for lack of personal

jurisdiction.” Lochren v. Horne LLP, No. 6:21-CV-1640-WWB-LHP, 2022 WL

14065521, at *1 (M.D. Fla. May 3, 2022). When assessing a Rule 12(b)(2)

motion, “[t]he court must undertake a two-step inquiry [to] determin[e]

whether it can exercise personal jurisdiction over a nonresident defendant.” Id.

“First, the court must determine whether the forum state’s long-arm statute

provides a sufficient basis for personal jurisdiction.” Id. If it does, the court

must then “determine whether sufficient minimum contacts exist between the

defendant[] and the forum state so as to satisfy traditional notions of fair play

and substantial justice under the Due Process Clause of the Fourteenth

Amendment.” Id.

“A plaintiff seeking the exercise of personal jurisdiction over a

nonresident defendant bears the initial burden of alleging in the complaint

sufficient facts to make out a prima facie case of jurisdiction.” Curry v. W.

Express, Inc., No. 7:23-CV-30 (WLS), 2025 WL 919384, at *2 (M.D. Ga. Mar.

26, 2025). “[T]he burden [then] shifts to the defendant to challenge [the]

allegations by affidavits or other pleadings.” Burgauer v. Premier Tr., Inc., No.

5:23-CV-708-PRL, 2024 WL 2978303, at *4 (M.D. Fla. June 13, 2024). At that

point, “the burden traditionally shifts back to the plaintiff to produce evidence

supporting jurisdiction.” Ares Def. Sys., Inc. v. Karras, No.

615CV1107ORL22DAB, 2016 WL 1554127, at *2 (M.D. Fla. Apr. 18, 2016). In

assessing the evidence, the “court must construe all reasonable inferences in

favor of the plaintiff.” Cable/Home Commc’n Corp. v. Network Prods., Inc., 902

F.2d 829, 855 (11th Cir. 1990).

II. Discussion

As mentioned, we first ask “whether [Florida]’s long-arm statute

provides a sufficient basis for personal jurisdiction.” Lochren, 2022 WL

14065521, at *1. The reach of Florida’s long arm statute is a question of Florida

law, and it must be strictly construed. See Robinson v. Giarmarco & Bill, P.C.,

74 F.3d 253, 256 (11th Cir. 1996); Prunty v. Arnold & Itkin LLP, 753 F. App’x

731, 734 (11th Cir. 2018). While the statute allows “both specific and general

jurisdiction,” Anderson v. Talentsy, Inc., 599 F. Supp. 3d 1207, 1213 (M.D. Fla.

2022), Plaintiffs limit their argument to the former. (Doc. 42 ¶¶ 18-37.)

Florida confers specific jurisdiction over a non-resident defendant if the

claims arise from their forum-related contacts (i.e., contacts with Florida) and

those contacts fall within one of nine enumerated categories. See Fla. Stat. §

48.193(1)(a). Plaintiffs argue that OMI’s contacts satisfy two of the statute’s

categories: (1) “Operating, conducting, engaging in, or carrying on a business

or business venture in this state or having an office or agency in this state,” §

48.193(1)(a)(1); and (2) “Committing a tortious act within this state,” §

48.193(1)(a)(2). Each provision is addressed in turn.

A. § 48.193(1)(a)(1)

Florida recognizes personal jurisdiction over any person who operates a

business in the state. See Fla. Stat. § 48.193(1)(a)(1). To trigger §

48.193(1)(a)(1), “the activities of the defendant must be considered collectively

and show a general course of business activity in the state for pecuniary

benefit.” Horizon Aggressive Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d

1162, 1167 (11th Cir. 2005). Factors relevant, but not dispositive, to this

analysis include: (1) the presence and operation of an office in Florida; (2) the

possession and maintenance of a license to do business in Florida; (3) the

number of Florida clients served; and (4) the percentage of overall revenue

received from Florida clients. See Prunty, 753 F. App’x at 734.

OMI has filed a declaration from Steven Laverty, its Vice President of

Global Kitting Operations. (Doc. 48-9.) According to Laverty, OMI does not own

or operate the Fort Myers plant at the center of Plaintiffs’ claims. Rather,

Defendant ACS leases the facility, where it conducts sterilization operations

for one client.

The relationship between OMI and ACS is that of parent-subsidiary.

OMI acquired ACS in 2021, and ACS became a part of the family of distinct

corporate entities known as “Owens & Minor.” ACS is licensed to do business

in Florida, while OMI is not. OMI does not have an office or place of business

in the state, has not appointed a registered agent for service of process in

Florida, and does not hold a bank account in the state. (Id. ¶¶ 7-10.) ACS also

maintains its own board of directors, officers, and books of account. (Id. ¶¶ 13-

15, 21, 23, 27.) Boiled down, according to Laverty, ACS is an indirect subsidiary

of OMI that operates independently.

Given Laverty’s declaration, OMI has provided sufficient evidence to

shift the burden to Plaintiffs to prove jurisdiction. See Enic, PLC v. F.F. S. &

Co., 870 So. 2d 888, 891 (Fla. Dist. Ct. App. 2004) (“It is well settled in Florida

that the mere presence of a subsidiary in Florida, without more, does not

subject a non-Florida corporate parent to long-arm jurisdiction.”).

Plaintiffs paint a far different picture. They claim OMI controls the

sterilization plant, and thus OMI has “[p]urposefully availed itself of the

benefits of doing business in Florida.” (Doc. 52 at 6.) Plaintiffs’ argument

primarily relies on the pleadings. (Id.) But they cannot “merely reiterate the

factual allegations in the complaint” at this stage. Polski Linie Oceaniczne v.

Seasafe Transp. A/S, 795 F.2d 968, 972 (11th Cir. 1986). They must now

“produce evidence supporting jurisdiction.” United Techs. Corp. v. Mazer, 556

F.3d 1260, 1274 (11th Cir. 2009).

Beyond the complaint, Plaintiffs point to ACS’s Rule 26 disclosures that

name several employees who also “hold themselves out as OMI employees” on

LinkedIn. (Doc. 52 at 9.) Plaintiffs stress that these ACS employees have OMI

email addresses. (Id. at 10.) Elsewhere in the record is an FDA warning letter

sent to “OMI, Inc. dba American Contracting Systems, Inc.” (Id.) Finally,

Plaintiffs note that OMI’s website lists the Fort Myers plant as “one of our

operations.” (Id.)

Even accepting Plaintiffs’ evidence at face value, it is not enough. OMI

does not control what individuals put on their LinkedIn profiles. Nor does the

use of OMI email addresses refute Laverty’s declaration that ACS handles its

own finances and has its own employees who control the day-to-day

operations―crucial considerations in the specific jurisdiction analysis. Equally

problematic, Plaintiffs have not shown how any of their evidence connects

OMI’s activities to the claims raised here. See Hinkle v. Cirrus Design Corp.,

775 F. App’x 545, 549 (11th Cir. 2019) (no personal jurisdiction under §

48.193(1)(a)(1) where the claims did not arise out of alleged business activity).

Plaintiffs have shown little more than a tangential corporate

relationship between OMI and ACS, which is insufficient for the Court to

exercise personal jurisdiction over a defendant for “[o]perating, conducting,

engaging in, or carrying on a business or business venture in this state[.]” Fla.

Stat. § 48.193(1)(a)(1).

B. § 48.193(1)(a)(2)

“Section 48.193(1)(a)(2) provides that a nonresident defendant is subject

to personal jurisdiction in Florida for any cause of action arising from . . .

[c]omitting a tortious act within [the state].” Louis Vuitton Malletier, S.A. v.

Mosseri, 736 F.3d 1339, 1353 (11th Cir. 2013). For personal jurisdiction to

attach under this provision, Plaintiffs must show that OMI “committed a

substantial aspect of the alleged tort in Florida.” L.O.T.I. Grp. Prods. v. Lund,

907 F. Supp. 1528, 1532 (S.D. Fla. 1995). “As a separate legal entity, a parent

corporation is not liable for torts committed by its subsidiary[.]” Am. Int'l Grp.,

Inc. v. Cornerstone Businesses, Inc., 872 So. 2d 333, 336 (Fla. Dist. Ct. App.

2004).

Plaintiffs offer the same evidence as above, which again is not enough.

Plaintiffs cannot hold OMI directly liable because the record shows that ACS

conducted the activities giving rise to the tort claims. OMI thus never

“committed a substantial aspect of the alleged tort in Florida” necessary to

establish personal jurisdiction. See MeterLogic, Inc. v. Copier Sols., Inc., 126 F.

Supp. 2d 1346, 1354 (S.D. Fla. 2000) (dismissing complaint where the court

found “no facts” to conclude the parent company “engaged in any [] torts

directly”).

Florida also allows jurisdiction when the tort “occur[s] through the

nonresident defendant’s telephonic, electronic, or written communications into

Florida so long as the cause of action . . . arise[s] from the communications.”

Robinson Helicopter Co., Inc. v. Gangapersaud, 346 So. 3d 134, 140 (Fla. Dist.

Ct. App. 2022). There is no allegation (let alone evidence) that the claims here

arise from OMI’s communications into the state. And Plaintiffs have otherwise

not alleged that OMI committed a tort outside Florida that caused injury here.

Il. Conclusion

Plaintiffs did not sustain their burden of justifying personal jurisdiction

over OMI. And absent jurisdiction, the Court can go no further. See, e.g., Univ.

of S. Alabama v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999) (“Without

jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power

to declare the law, and when it ceases to exist, the only function remaining to

the court is that of announcing the fact and dismissing the cause.”). OMI’s

Motion to Dismiss for Lack of Personal Jurisdiction (Doc. 48) is thus

GRANTED. The Clerk is DIRECTED to terminate Defendant Owens &

Minor, Inc. without prejudice.

ORDERED in Fort Myers, Florida on October 22, 2025.

Kyle C. Dudek os ot

United States District Judge