The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 4:25-10037-Civ-LEIBOWITZ/TORRES
IN RE: KEY WEST NAS LITIGATION
THIS DOCUMENT RELATES TO: ALL CASES
_____________________________________________/
REPORT AND RECOMMENDATION ON DEFENDANT
BALFOUR BEATTY INVESTMENTS, INC.’S MOTION TO
DISMISS FOR LACK OF PERSONAL JURISDICTION
Defendant Balfour Beatty Investments, Inc. (“BBI”) has moved to dismiss the
claims against it for lack of personal jurisdiction. The question presented boils down
to whether this Court may exercise personal jurisdiction over BBI, when the facts
underlying that jurisdiction, especially BBI’s own participation in the management
of military housing at Naval Air Station Key West, are hotly disputed and based
largely on the same facts that will decide whether BBI is ultimately liable on the
merits. BBI says the answer is no because BBI is a Delaware corporation
headquartered in Pennsylvania; it is not registered to do business in Florida, owns
no property here, and signed none of the contracts at the heart of this case. BBI
protests that it is merely a remote corporate parent swept into a Florida lawsuit solely
because it sits one or more rungs up the ownership ladder from the entities that
actually ran the housing operation.
But based on the available record in the light most favorable to the Plaintiffs,
the answer at this stage is yes. The Second Amended Complaint (“the Master
Complaint”), which the Court in its May 14, 2026 Order found well-pleaded, alleges
that BBI did not merely own; it acted in several ways relevant to the action. Personnel
bearing the “Balfour Beatty Investments” name scheduled and attended calls with
residents about conditions in their homes, answered maintenance and health-and-
safety complaints, signed leases, and operated a “BBI Helpdesk” to which residents
were directed. And BBI shares multiple officers and functions in common with its
local subsidiary, Balfour Beatty Communities (“BBC”) that evidence overlapping
liability. These allegations, if proven true, could help support Plaintiffs’ theory of
liability against BBI, while at the same time serving as a basis to hold BBI liable in
this jurisdiction under Florida’s long-arm statute and consistent with Due Process.
BBI takes issue with Plaintiffs’ allegations and declares that these were really
operational employees of its subsidiary, BBC, using a “brand” rather than acting for
the corporation. Plus, BBI maintains that even though it shared a Senior Vice
President, Controller and Treasurer with BBC, and BBI officers served in other
capacities with BBC (including Chief Compliance Officer), it had nothing to do with
operations at the Key West facilities and cannot be held liable together with BBC.
BBI’s position may ultimately prevail. But it asks the Court to resolve, on
competing affidavits and without a trial, the very factual dispute (who was acting for
whom) that also effectively decides the merits of the case. That the Court cannot do
at this stage. As explained further below, BBI’s motion should be Denied, and the
jurisdictional issue should be carried with the case at least through discovery and
summary judgment. For now, Plaintiff has alleged more than enough facts to assert
a prima facie case for personal jurisdiction over BBI.
I. BACKGROUND
A. The Parties and the Corporate Structure
Plaintiffs and their families are current and former residents of privatized
military housing at Naval Air Station Key West (“NAS Key West”). They allege that
they were exposed to toxic mold and other hazardous conditions in their homes and
subjected to reckless indifference by the BBI personnel managing the housing
facilities. They assert claims sounding in negligence, breach of contract,
misrepresentation, fraud, and related theories. [D.E. 136].
The housing is owned and operated through a chain of entities. Southeast
Housing, LLC (a public-private venture between the United States Department of
the Navy and BBC Military Housing–Navy Southeast LLC (“BBC-NSE”)) leases the
land from the Navy and leases the housing to military families. BBC-NSE is owned,
through an intermediary, by BBC. And BBC in turn is the sole member-managed
entity beneath BBI. BBI is the sole member of BBC. Affidavit of Sarah Bitto ¶ 14
[D.E. 161-9, 40-1].1 BBI, in turn, is a subsidiary of the publicly traded parent, Balfour
Beatty PLC (“BBPLC”) (an entity not a party to the action).
1 Affiant Bitto submitted multiple affidavits on the docket in support of BBI’s
jurisdictional arguments. References to her affidavit shall relate to [D.E. 161-9]
unless otherwise identified.
BBI describes itself as a passive “investment ownership vehicle.” According to
the affidavit of Ms. Bitto, BBI is the investment ownership vehicle for three privatized
military housing projects—all United States Air Force projects, none in Florida—
awarded after April 2008. But BBC is the investment ownership vehicle for the
projects awarded earlier, including NAS Key West. Bitto Aff. ¶¶ 11–12. BBI avers
that it has no offices, employees, registered agent, real estate, or bank accounts in
Florida; receives no direct revenue from Florida; is not a party to the Project
Agreements or the residential leases; and plays no role in the day-to-day operation,
financing, or policy-setting for NAS Key West housing. Id. ¶¶ 6–8, 15–16. BBC is
where Plaintiffs should turn for relief in this action, not BBI.
B. The Direct-Participation Allegations and Evidence
The Complaint does not rest on BBI’s ownership and organizational chart. It
first alleges that BBI itself participated in the operation of NAS Key West housing,
and it identifies that participation with specificity. Compl. ¶¶ 122–124, 130–136.
Plaintiffs plead, and have submitted declarations and documentary evidence to
support, the following:
• Patti Avey, identified in her own communications as a “Balfour Beatty
Investments” “Regional Operations Director,” scheduled and attended calls
with Plaintiff Talarico to discuss problems with his home, and
communicated with multiple other Plaintiffs about housing issues. LaCour
Decl. ¶¶ 4–5, 11, 14 & Exs. 2–3, 9, 12 [D.E. 172-1].
• Lee Tysinger, who identified himself as a “Life Health Safety Service
Manager” for “Balfour Beatty Investments,” sent Plaintiffs numerous
emails responding to concerns about mold and other hazardous conditions.
The email address used was from a “bbcgrp.com” domain. LaCour Decl. ¶¶
6, 9–12, 15 & Exs. 4, 7–10, 13.
• Demetraise Wynn, identified as “Assistant Community Manager, Balfour
Beatty Investments,” electronically signed, from the same “bbcgrp.com”
domain, Plaintiffs’ leases. LaCour Decl. ¶¶ 16, 18 & Exs. 14, 16.
• Additional individuals—a “Customer Experience Specialist,” a “Facility
Director,” and others—likewise interacted with Plaintiffs while identifying
themselves with “Balfour Beatty Investments” and from the “bbcgrp.com”
domain. LaCour Decl. ¶¶ 3, 7–8, 13, 17 & Exs. 1, 5–6, 11, 15.
• Lease packets advised Plaintiffs that “from time to time, Balfour Beatty
Investments (we, us or Company) may be required by law to provide …
certain written notices or disclosures,” and gave instructions for contacting
“Balfour Beatty Investments” care of another individual from a
“bbcgrp.com” domain. LaCour Decl. Ex. 14.
• Residents were referred to a “BBI Helpdesk” to log support requests, and
BBI prepared at least one “Community Incident Report” regarding mold at
NAS Key West homes. That Report references email domains used for log
support requests as all being various “bbcgrp.com” addresses. Compl. ¶ 136;
LaCour Decl. ¶ 19 & Ex. 17.
BBI cannot deny that these communications occurred, at least for purposes of
its motion to dismiss. It contends instead that, in every instance cited, the individual
identified was actually employed by and working for BBC, not BBI, and that the
employee’s use of the “Balfour Beatty Investments” name reflected a “Specialist
Brand” of the corporate group rather than the legal entity. Supp. Affidavit of Mauren
Omrod ¶¶ 4–9 [D.E. 173-1]; Bitto Aff. ¶¶ 26–33. It supports that contention with
affidavits and, on reply, with an internal document—a “Branded Emails & Business
Cards Policy & Procedure.” Supp. Omrod Aff. Ex. B. Notably, however, the document
lists “Investments,” “Communities,” and “Campus Solutions” in a “Company” drop-
down from which personnel select “based on the division that you work for,” and it
directs personnel handling “Environmental” or “Health & Safety” functions to use the
very “Balfour Beatty Investments” signature that BBI now says was used in error.
BBI’s supporting materials insist that the employees at issue in the Complaint were
acting as BBC, but it does not really tackle why some personnel identified with
“Balfour Beatty Investments” while others identified with “Balfour Beatty
Communities.” Nor does it offer a statement from any of the individuals themselves.
We are left to apply the document it relies on, says BBI, based on its representation
of what was supposed to have happened.
C. The Overlap Between BBI and BBC
Normally on a motion to dismiss, however, a defendant’s representations of
fact do not overcome facts alleged in a complaint. We assume the complaint’s
allegations will be proven true. Thus, on the face of that document and given that
standard of review, one could still conclude that there is material overlap between
BBI and its subsidiary, so much so that Plaintiff’s prima facie allegations would
prevail on this motion.
And, to reiterate what the Complaint alleges with respect to BBI, it pointedly
claims that BBI is simply one of various subsidiaries controlled by the BBPLC
enterprise. Compl. ¶¶ 116-20. It derives “substantial direct or indirect revenue” from
its investments in military housing including housing in Florida such as NAS Key
West, which represents nearly half the value of its investments. Compl. ¶ 122. It
indeed describes itself as “an active owner/investor, developer and manager of
residential real estate in the . . . military markets.” Compl. ¶ 123. BBI’s general
counsel signed the legal documents governing the NAS Key West operations. Compl.
¶ 131-32.
The Complaint further alleges that BBI had direct involvement in the
operations of the Key West facilities, which are quite relevant to this action. For
instance, BBI established mold-management policies applicable throughout the
enterprise. Compl. ¶ 133. Its compliance manager and other officers are designated
to receive reports of illegal or unethical conduct regarding the facilities’ operations.
Compl. ¶ 134. This explains why many of the interactions that the Plaintiffs
themselves had with self-identified “BBI” personnel. Compl. ¶¶ 136(a)-(f).
The Complaint, therefore, is replete with specific, plausible allegations that tie
BBI directly to the management and operation of the Key West facilities, to BBI
personnel engaging with the Plaintiffs, and with BBI shouldering compliance
responsibility over BBC. But that is not the extent of that showing of overlap in this
record. BBI’s own affidavits acknowledge that BBI and BBC share a number of senior
officers—for positions including Senior Vice President, Corporate Controller,
Treasurer, Chief Financial Officer, Chief Compliance Officer, Executive Vice
President and Secretary, and Assistant Vice President and Assistant Secretary—and
that the two companies share business departments including Human Resources,
Legal, Accounting, Information Technology, Environmental/Health & Safety, and
Marketing. Bitto Aff. ¶¶ 7-8 [D.E. 40-1]. Indeed, at least one BBI Executive Vice
President simultaneously served as President of BBC. Id. ¶ 7. And, curiously, the
affiant who submitted record evidence on BBI’s behalf, Sarah Bitto, self-identifies as
BBI’s Director, Senior Vice President, Corporate Controller, and Treasurer, at the
same time as she is the Senior Vice President, Corporate Controller, and Treasurer
of BBC. Id.
BBI may not find those facts remarkable or persuasive, but they are certainly
record evidence on the motion that, drawing inferences in Plaintiffs’ favor, support
the notion that BBI and BBC may share liability here. And even the ultimate parent’s
annual report provides Plaintiff with evidence of the overlap between BBI and BBC.
BBPLC’s 2024 Annual Report and BBI’s own website describe BBI as continuing “to
develop and maintain a large network of privatised military housing facilities across
the U.S.,” and further that U.S. military housing comprises roughly 48% of the value
of BBI’s portfolio. Weitzner Decl. Ex. 1, at 21, 263 [D.E. 62-1].
Plaintiffs point to all this evidence in the record as ample prima facie support
for their contention that BBI is directly involved in the case, not just as the sole
member of BBC that itself runs the day-to-day operations of NAS Key West. BBI,
however, points to this same evidence and concludes otherwise; BBI has no
connection to or involvement with NAS Key West, as it does not own, operate, or
manage any of the on-base housing at the facilities. Moreover, BBI says it played no
role in negotiating the Ground Lease, the Operating Agreement, or the Property
Management Agreement. Bitto Aff. ¶ 19 [D.E. 40-1]. Indeed, BBI does not pay the
salaries of BBC employees, and BBC has its own employees. Id. ¶ 22. Except of course
BBC’s President, Senior Vice President, Executive Vice President, Assistant Vice
President, Chief Financial Officer, Chief Compliance Officer, Corporate Controller,
and Treasurer. Id. ¶ 7. So, again in the light most favorable to Plaintiffs, BBI may
not directly pay most of BBC’s employees except the ones that set policy and conduct
overall supervision of BBC’s financials, operations, and legal compliance.
D. Procedural Posture
In conjunction with the filing of this motion to dismiss on jurisdictional
grounds, BBI as well as the other named Defendants moved to dismiss the Amended
Complaint. [D.E. 100]. Like other Defendants, BBI argued that the complaint failed
to state a claim against it either directly or through alter ego or vicarious liability.
On May 14, 2026, the District Court resolved the Rule 12(b)(6) motion and held
specifically that the Complaint states claims against BBI, finding “[s]ignificant direct
participation … alleged against BBI” and “a litany of activities whereby BBI directly
participates in NAS Key West operations.” Order at 7–9 [D.E. 171]. That Order
acknowledged that it “addresses only whether claims asserted against BBI survive
dismissal under Rule 12(b)(6),” and not personal jurisdiction. Id. at 5 n.2. The present
motion, BBI’s Rule 12(b)(2) motion [D.E. 161], is addressed here.
Following the Order, the Court directed supplemental briefing on the effect of
the Rule 12(b)(6) ruling, and the parties complied. [D.E. 180, 181]. BBI insists that
the May 14th Order casts no shadow on BBI’s jurisdictional challenge because a
different standard applies. BBI is half right; Rule 12(b)(6) findings do not control a
jurisdictional question. The two inquiries apply different standards to an overlapping
set of facts. But BBI’s attempt to swat away the Court’s Order is also wrong in an
important respect. The Court now treats the 12(b)(6) findings not as binding on
jurisdiction, but as confirmation that the direct-participation allegations are concrete
and well-pleaded—which certainly bears on the prima facie inquiry described below.
II. ANALYSIS
Plaintiffs do not assert general jurisdiction, and rightly so; BBI is not “at home”
in Florida. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919
(2011). The only question in dispute goes to specific jurisdiction, which turns initially
on three subsections of the long-arm statute cited in the Master Complaint: §
48.193(1)(a)(1) (operating or carrying on a business in Florida), and § 48.193(1)(a)(2)
(committing a tortious act within Florida), and § 48.193(1)(a)(7) (breaching a contract
by failing to perform acts required to be performed in Florida). Plaintiffs invoke all
three. The Court addresses each, then turns to the two imputation theories, agency
and alter ego, that Plaintiffs press in the alternative.
A. Standards of Review
A federal court sitting in Florida exercises personal jurisdiction over a
nonresident defendant only if two requirements are met: the defendant’s conduct falls
within Florida’s long-arm statute, Fla. Stat. § 48.193, and the exercise of jurisdiction
comports with the Due Process Clause. Louis Vuitton Malletier, S.A. v. Mosseri, 736
F.3d 1339, 1350 (11th Cir. 2013); Meier ex rel. Meier v. Sun Int’l Hotels, Ltd., 288 F.3d
1264, 1271 (11th Cir. 2002).
Specific personal jurisdiction is permitted when a suit “aris[es] out of or
relat[es] to the defendant’s contacts with the forum.” Bristol-Myers Squibb Co. v.
Superior Court of California, San Francisco Cnty., 582 U.S. 255, 262 (2017) (quoting
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984)). A
plaintiff must first allege a prima facie basis of specific of jurisdiction, under a state’s
long-arm statute, by pleading material facts that track the given statute’s language
and demonstrate how its elements are satisfied. E.g., Intercarga Internacional De
Carga, S.A. v. Harper Group, Inc., 659 So. 2d 1208, 1210 (Fla. 3d DCA 1995); see also
Wendt v. Horowitz, 822 So. 2d 1252, 1257 (Fla. 2002) (under the first prong of the test
for long-arm jurisdiction “it must be determined that the complaint alleges sufficient
jurisdictional facts to bring the action within the ambit of the statute”) (quoting
Execu–Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So. 2d 582, 584 (Fla. 2000)).
Florida courts exercise specific personal jurisdiction if a defendant is operating
a business or engaged in a “business venture” in the state under Fla. Stat. §
48.193(1)(a)(1), or commits a “tortious act” within the state under § 48.193(1)(a)(2),
or “fail[s] to perform acts required by the contract to be performed in [Florida]” under
§ 48.193(1)(a)(7). Florida’s long-arm statute must be strictly construed. Sculptchair,
Inc. v. Century Arts, Ltd., 94 F.3d 623, 627 (11th Cir. 1996) (citing Oriental Imports
& Exports, Inc. v. Maduro & Curiel's Bank, N.V., 701 F.2d 889, 891 (11th Cir. 1983)).
A Plaintiff bears the initial burden of establishing a prima facie case of specific
personal jurisdiction. Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1350
(11th Cir. 2013) (quoting United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir.
2009)). The defendant may then submit affidavits contesting those facts. If it does,
the burden shifts back to the plaintiff to substantiate the jurisdictional allegations
“by affidavits or other competent proof, and not merely [to] reiterate the factual
allegations in the complaint.” Future Tech. Today, Inc. v. OSF Healthcare Sys., 218
F.3d 1247, 1249 (11th Cir. 2000). Whether the plaintiff has made a prima facie
showing is a legal question, and the Court does not weigh evidence or make credibility
determinations. AcryliCon USA, LLC v. Silikal GmbH, 985 F.3d 1350, 1364–65 (11th
Cir. 2021). And “[t]o the extent that ‘the plaintiff’s complaint and supporting evidence
conflict with the defendant’s affidavits, the court must construe all reasonable
inferences in favor of the plaintiff.’” Ibid. (quoting Diamond Crystal Brands, Inc. v.
Food Movers Int’l, Inc., 593 F.3d 1249, 1257 (11th Cir. 2010)); see also Consol. Dev.
Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th Cir. 2000); Madara v. Hall, 916 F.2d
1510, 1514 (11th Cir. 1990).
That last principle is important here (which is elaborated on in Part II.E
below). If the jurisdictional facts and the merits facts are one and the same, i.e., when
deciding who acted in Florida also decides who is liable for what happened there, the
court need not resolve the dispute against the plaintiff on the papers. It can accept
the plaintiff’s prima facie showing and reserve the contested facts for trial or for a
full and fair evidentiary hearing even after trial. Eaton v. Dorchester Dev., Inc., 692
F.2d 727, 729–32 (11th Cir. 1982); see also Walk Haydel & Assocs., Inc. v. Coastal
Power Prod. Co., 517 F.3d 235, 241–42 (5th Cir. 2008); Serras v. First Tenn. Bank
Nat’l Ass’n, 875 F.2d 1212, 1214–16 (6th Cir. 1989). A court has complete discretion
to do so under Rule 12(i) if it deems it too premature to adjudicate that ultimate
factual question by having to weigh the credibility of witness testimony, which is
more appropriate for trial. AcryliCon, 985 F.3d at 1364-65 (quoting Fed. R. Civ. P.
12(i) (“If a party so moves, any defense listed in Rule 12(b)(1)-(7) – whether made in
a pleading or by motion – and a motion under Rule 12(c) must be heard and decided
before trial unless the court orders a deferral until trial.”)).
Otherwise, difficult constitutional or preclusion issues may arise, as a First
Circuit case warned against, which the Eleventh Circuit relied upon:
Especially troubling issues of this kind arise when, for example, long-
arm jurisdiction depends on a finding that the claim on the merits arises
out of the defendant’s contacts with the forum state. A similar concern
with the right to trial by jury is what animates the constitutional
requirement that factual issues common to both legal and equitable
claims in the same proceeding be tried to a jury first. . . . Moreover, when
factual issues are common to both the jurisdictional question and the
claim on the merits, requiring the plaintiff to prove jurisdiction by a
preponderance of the evidence in a Rule [12(i)] preliminary proceeding
may be an inefficient use of scarce judicial resources. . . . Postponing
proof by a preponderance of the evidence until trial has the additional
advantage of allowing a plaintiff, when required to prove by a
preponderance of the evidence, to present proof “in a coherent, orderly
fashion and without the risk of prejudicing his case on the merits.”
Boit v. Gar-Tec Products, Inc., 967 F.2d 671, 677 (1st Cir. 1992) (quoting Data Disc,
Inc., v. Systems Tech. Assoc., Inc., 557 F.2d 1280, 1285 n.2 (9th Cir. 1977)), cited and
quoted with approval, AcryliCon, 985 F.3d at 1365.
We will focus on this important aspect in Part II.E, because it ultimately
governs how the merits-laden disputes in this case should be handled.
B. BBI’S Direct Participation in Business and Tortious Activity
The Court begins with Plaintiff’s best case for long arm jurisdiction: BBI’s own
alleged conduct in Florida does not rely on imputation of its subsidiary’s contacts. If
BBI’s own personnel, acting for BBI, scheduled calls about residents’ homes,
answered mold complaints, signed leases, and ran a helpdesk for NAS Key West, then
BBI itself “commit[ted] a tortious act within this state” for purposes of the long arm
statute if those acts contributed to the negligence and malfeasance that gives rise to
the claims in the case. They would also evidence the type of ongoing business
activities in the state sufficient to show that BBI “carr[ied] on a business” here under
§ 48.193(1)(a)(1) of the statute. No corporate veil need be pierced and no agency
relationship established; BBI’s own direct contacts are enough to trigger long arm
jurisdiction.
Specifically, under § 48.193(1)(a)(1), the defendant’s activities “must be
considered collectively and show a general course of business activity in the State for
pecuniary benefit.” Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 627 (11th Cir.
1996) (quoting Dinsmore v. Martin Blumenthal Assocs., Inc., 314 So. 2d 561, 564 (Fla.
1975)). Even “sporadic” efforts generating “relatively insignificant” revenue can
satisfy the standard when viewed collectively. Id. at 628. The factors BBI itself
invokes, like having no offices, licenses, clients, and negligible percentage of revenue
from Florida, are factors to weigh rather than prerequisites that must each be met.
See, e.g., Prunty v. Arnold & Itkin LLP, 753 F. App’x 731, 735 (11th Cir. 2018). But
the collective picture Plaintiffs paint, which include named BBI personnel performing
ongoing operational work at a Florida installation from which BBI derives value,
states a prima facie case for directly carrying on business here.
And those business activities are among the type of operations that the Master
Complaint alleges contributed to the Plaintiffs’ injuries in the case. Plaintiffs are
alleging that their claims arise from the same nucleus of operative facts, relating to
BBI’s and other Defendants’ conduct in leasing, managing, and maintaining
Plaintiffs’ housing. More precisely, these claims are premised on BBI’s failure to
adequately maintain the properties and their attempts to conceal and cover up that
failure. As the Complaint takes pains to allege, those attempts involved a whole host
of acts of malfeasance and nonfeasance that included the very same type of
interactions that BBI employees allegedly had with the residents. The evidence of the
interactions of BBI representatives with Plaintiffs thus relate, as alleged, directly to
the leasing, management, and failure to adequately maintain Plaintiffs’ homes. In
that respect, BBI’s direct activities in connection with operating the facility, if true,
would certainly support the connexity requirement for long-arm/specific jurisdiction
under this provision. See, e.g., Golant v. German Shepherd Dog Club of Am., Inc., 26
So. 3d 60, 63 (Fla. 4th DCA 2010) (“This activity, when considered collectively, shows
a ‘general course of business activity in the State for pecuniary benefit.’”) (quoting
Dinsmore, 314 So.2d at 564); Citicorp Ins. Brokers (Marine), Ltd. v. Charman, 635 So.
2d 79, 81-83 (Fla. 1st DCA 1994) (deriving commissions over five years, sending
letters and telefaxes back and forth to negotiate deals, and responding to Florida
customer requests, evidenced general course of business activities, which collectively
had a sufficient nexus to claims alleged to sustain long-arm jurisdiction).
Next, under § 48.193(1)(a)(2) a defendant commits a tortious act “within”
Florida when it directs tortious conduct at the State, even from afar. See Del Valle v.
Trivago GMBH, 56 F.4th 1265, 1275–76 (11th Cir. 2022). Acts aimed at Florida
residents that cause harm in Florida can satisfy the statute regardless of where the
actor was physically located. So a nonresident defendant who commits a tortious act
elsewhere that causes injury in the state can be subject to specific jurisdiction under
this provision of the statute. See, e.g., Licciardello v. Lovelady, 544 F.3d 1280, 1283
(11th Cir. 2008) (alleged trademark infringement, which occurred through a website
accessible in Florida, satisfied this long-arm provision because it caused injury to a
Florida resident); Posner v. Essex Ins. Co., 178 F.3d 1209, 1216 (11th Cir. 1999)
(adopting broad interpretation of long-arm statute by Florida courts that allows
personal jurisdiction over nonresident defendant alleged to have committed a tort
causing injury in Florida); Wendt, 822 So. 2d at 1260 (Florida Supreme Court agreed
that a tortious act “can occur through the nonresident defendant’s telephonic,
electronic, or written communications into Florida” so long as “the cause of action . . .
arise[s] from the communications.”).
In this Master Complaint, Plaintiffs’ allegations and supporting evidence that
BBI-identified personnel handled mold and maintenance complaints about specific
Florida homes (the very conditions underlying the tort claims) supplies that
connection, whether or not the personnel were stationed in Florida or elsewhere.
BBI’s primary response to this conclusion is the “brand, not the company”
argument: the personnel were BBC employees using a group brand, and so their
conduct was BBC’s, not BBI’s. But this theory (attested to by C-suite executives for
BBI and not the personnel themselves) is, at bottom, a factual assertion that
contradicts Plaintiffs’ documentary evidence that includes seventeen exhibits in
which individuals identified themselves to residents as “Balfour Beatty Investments.”
On a motion where conflicting evidence is construed in the plaintiff’s favor, the Court
cannot resolve that conflict against Plaintiffs now. And resolving it would do more
than decide jurisdiction; because the same personnel and the same conduct underlie
the merits, deciding that they acted for BBC rather than BBI would effectively
adjudicate BBI’s liability. That is precisely what the intertwined-facts rule forbids at
this stage. See infra Part II.E.
And even if we were inclined to adjudicate the dispute now, BBI’s reply
submission deepens, rather than dispels, that dispute. BBI now relies on its “Branded
Emails & Business Cards Policy & Procedure” to argue that the resident-facing
personnel used the “Balfour Beatty Investments” designation in violation of company
policy. Omrod Aff. Ex. B. But the policy arguably cuts the other way if one looks at it
in a light favorable to Plaintiffs. It instructs personnel, in building an email
signature, to “[s]elect ‘Investments,’ ‘Communities,’ or ‘Campus Solutions’ from the
‘Company’ drop-down list based on the division that you work for”—language that
treats “Investments” as a “Company” an employee may “work for,” and that ties the
choice to the work performed rather than to a free-floating logo. Id. The policy further
directs personnel performing “Environmental” or “Health & Safety” functions to use
the Balfour Beatty Investments signature. Id.
That instruction fits the conduct alleged here: Lee Tysinger, who repeatedly
answered Plaintiffs’ mold and safety complaints, identified himself as a “Life Health
Safety Service Manager.” On BBI’s own document, Tysinger’s use of the “Balfour
Beatty Investments” signature thus appears to be the prescribed practice, not a
departure from it. In other words, Tysinger appears to be designating himself as a
BBI representative, not BBC, as per the policy itself. And even if there are
explanations for that, the inferences to be drawn from the paper record at this stage
support Plaintiffs’ interpretation, not BBI’s.
Nor is BBI’s evidence internally consistent. The supplemental Omrod affidavit
describes “Balfour Beatty Investments” as one of three corporate-group brands, the
other two being “Balfour Beatty Construction” and “Balfour Beatty Infrastructure.”
Supp. Omrod Aff. ¶ 4. Yet the “Company” drop-down in BBI’s own policy lists
“Investments,” “Communities,” and “Campus Solutions”—not Construction or
Infrastructure—and neither Construction nor Infrastructure appears on the roster of
“Specialist Brands” on Balfour Beatty plc’s website that BBI itself submitted. Id. ¶ 5
& Ex. A. Again, inferences from this record must be drawn in Plaintiffs’ favor.
The scale of the conduct compounds the difficulty for BBI. This is not the case
of a lone employee who mistakenly selected the wrong signature on a stray email.
Plaintiffs have come forward with at least sixteen examples of communications in
which at least six individuals—holding titles such as Facility Director, Regional
Operations Director, Customer Experience Specialist, Assistant Community
Manager, and Life Health Safety Service Manager—identified themselves to
residents as representatives of “Balfour Beatty Investments.” Laclor Decl. ¶ 2. BBI,
which presumably holds the personnel’s own employment records and could have
submitted their accounts, offers no testimony from any of them explaining the
practice. Drawing the inferences the governing standard requires in Plaintiffs’ favor,
the repeated, role-matched use of BBI’s name by operational personnel is evidence
that they were doing BBI’s work, not just BBC’s.
None of this proves of course that the personnel were in fact acting for BBI
rather than BBC. Ultimately BBI’s reading (that “Company” in a signature template
denotes an internal division rather than a legal employer, and that an employee’s
self-designation cannot bind the corporation) may prevail on a fully developed record.
But on a Rule 12(b)(2) motion, BBI’s own policy documents and affidavits raise at
least as many questions as they answer, and so they cannot justify resolving the
controlling factual dispute on the papers in BBI’s favor. Just as the Court found in
its May 14th Order, these allegations raise colorable factual disputes that preclude
dismissal.
For similar reasons, BBI’s reliance on the “out-of-state person” cases does not
change the result. It is true that simple “contact with out-of-state [persons] does not
constitute conduct ‘within this state.’” Dvoinik v. Rabl, No. 1:22-cv-24116, 2024 WL
923917, at *10 (S.D. Fla. Jan. 30, 2024), report and recommendation adopted, 2024
WL 655936 (S.D. Fla. Feb. 16, 2024). But that principle reaches only BBI’s
communications with BBC that is itself a non-Florida entity. It does not touch BBI’s
alleged direct contacts with the Florida-resident Plaintiffs, which are “within” Florida
no matter where BBI is incorporated because the Complaint relies on many acts
committed within Florida – the resident-facing conduct catalogued above. Cf.
Rautenberg v. Falz, 193 So. 3d 924, 930 (Fla. 2d DCA 2016) (“A complaint is not
legally sufficient to allege personal jurisdiction based on tortious acts when the
complaint fails to allege that the acts were committed within Florida” or otherwise
“directed at listeners who were located in the state”).
To bolster its position, BBI then turns to a recent 2026 decision from our court,
Egenberg v. Fish, No. 24-cv-24101, 2026 WL 989009 (S.D. Fla. Apr. 13, 2026).
Egenberg held that an out-of-state defendant’s work directed toward a non-Florida
resident, on a deal unrelated to the specific claim asserted, did not establish
jurisdiction under § 48.193(1)(a)(2). Id. at *4–5. That holding follows the principle
that incidental, claim-unrelated contacts do not suffice; it does not displace
jurisdiction founded on resident-facing conduct that is directly connected to the
claims, as Plaintiffs allege here. And in that case a non-Florida plaintiff was making
arguments in opposition to the motion that were founded on facts not alleged in the
complaint. Plus, the facts that were alleged could not sustain the plaintiff’s burden
as the communications cited were directed at a foreign plaintiff in a foreign state, not
against a Florida resident doing business in or residing in Florida. Id. at *3 (“the facts
alleged reflect that any actions Star Investment took in ‘orchestrat[ing] the Jet Fuel
Deal’ were directed to Plaintiff Egenberg, who is a citizen of New York. . . . These
alleged contacts do not help satisfy Network Freight’s burden because ‘contact with
out-of-state [persons] does not constitute conduct ‘within this state.’ ”) (quoting
Dvoinik v. Rabl, No. 22-cv-24226, 2024 WL 923917, at * 10 (S.D. Fla. Jan. 30, 2024),
report and recommendation adopted by 2024 WL 655936, at * 2 (S.D. Fla. Feb. 16,
2024)).
So rather than supporting BBI’s position, Judge Becerra’s analysis in Egenberg
only further highlights how different the allegations in this Master Complaint are.
The type of allegations that she found to be missing in that case are precisely present,
in spades, in this case. Ibid. (“There are no factual allegations that Star Investment
took actions directed to Network Freight, or anyone else in Florida, in connection with
allegedly orchestrating the Jet Fuel Deal.”).
Finally, § 48.193(1)(a)(7) supplies a colorable additional basis to sustain long-
arm jurisdiction. To the extent BBI personnel signed lease documents and disclosures
calling for ongoing performance at NAS Key West—and the lease packets told
residents that BBI “may be required by law to provide . . . certain written notices or
disclosures”—the statute’s contract-performance provision is implicated. See, e.g.,
ripKurrent LLC v. Richard Ballard IRA LLC, 530 F. Supp. 3d 1281, 1297–98 (S.D.
Fla. 2021) (denying motion to dismiss on jurisdiction grounds where inferences drawn
from complaint supported breach of performance due in Florida). The Court does not
rest its recommendation on this provision, but notes it as reinforcing the prima facie
showing already made under subsections (1) and (2) of § 48.193(1)(a).
C. Agency Principles Supply an Additional Basis for Jurisdiction
Plaintiffs also seek to impute BBC’s undisputed Florida contacts to BBI
through agency principles. A subsidiary’s contacts may be attributed to a parent
“when the [subsidiary] is merely an agent through which the parent company
conducts business” or has “no separate identity.” Meier, 288 F.3d at 1272. The
elements of actual agency are acknowledgment by the principal that the agent will
act for it, acceptance by the agent, and the principal’s control over the agent’s actions.
See, e.g., Taylor Grp., Inc. v. Indus. Distribs. Int’l Co., 859 F. App’x 439, 448 (11th Cir.
2021). Florida recognizes agency where affiliated companies form a “confusing
conglomerate” and are “essentially one and the same company both financially and
structurally, including the employment of common directors, officers, and
representatives.” Meier, 288 F.3d at 1273 (quoting Pappalardo v. Richfield Hosp.
Servs., Inc., 790 So. 2d 1226, 1228 (Fla. 4th DCA 2001)).
Plaintiffs make a persuasive case on this record that, notwithstanding Ms.
Bitto’s denials and explanations in her three affidavits, BBI has an agency
relationship with BBC such that BBC’s contacts with the Plaintiffs and Florida are
imputed to BBI. For example, on its web page, BBI proudly promotes its “[r]esidential
ventures in North America are managed through [BBC], a full-service real estate
company with capabilities that include development, financing, renovation and
property and facilities management services. . . . [BBC] operates as a strategic partner
focused on increasing property value and performance while delivering exceptional
customer services.” Weitzner Decl. Ex. 2 at 1 [D.E. 62-3 at 14].
In addition, BBI acknowledges in this litigation that it is the sole member and
parent of BBC, its “strategic partner” in this business venture. And BBI’s role as
manager of that partnership is evidenced by the fact these entities share a large
number of senior officers and directors as well as common business departments. So
BBC is managed by a group of officers who also hold senior executive positions at
BBI. This is prima facie evidence of an agency relationship because the parent
ostensibly has “operational control” over the agent’s “day-to-day . . . internal affairs
or basic operations.” Hard Candy, LLC v. Hard Candy Fitness, LLC, 106 F. Supp. 3d
1231, 1241 (S.D. Fla. 2015) (analyzing Enic, PLC v. F.F. South & Co., 870 So. 2d 888,
891-92 (Fla. 5th DCA 2004)); see, e.g., BFL Metal Prods. Co. v. Eyal Nahum Grp. Mfr.
Co., 2025 WL 2722734, at *9 (S.D. Fla. June 17, 2025) (denying motion to dismiss
based on prima facie agency jurisdiction for parent that described itself as a “group”
engaged in the challenged business and allegedly offending products were marketed
under the brand of the parent).
Indeed, the same considerations compelled the Court to conclude that the
Complaint states an agency claim against BBI, Order at 9, 11–12, which for similar
reasons is sufficient to subject BBI to this Court’s jurisdiction under agency
principles. See Meier, 288 F.3d at 1272 (jurisdiction may be established under an
agency theory if the plaintiff establishes “the subsidiary is merely an agent through
which the parent company conducts business in a particular jurisdiction”); PFM Air,
Inc. v. Dr. Ing. h.c. F. Porsche A.G., 751 F. Supp. 2d 1264, 1278-79 (M.D. Fla. 2010)
(parent was subject to jurisdiction in Florida based on joint venture with its
subsidiary that allegedly injured Florida customers; courts look to “whether the sum
of the defendant’s collective business activities in Florida shows a general course of
business activity in the state for pecuniary benefit,” and “it is not necessarily the
number of transactions, but rather the nature and extent of the transactions” that
controls).
BBI responds to this settled line of authority by marshaling the general rule
that shared officers and directors, standing alone, do not impute control; that the
parent must conduct “substantial business activity” through the subsidiary; and that
setting enterprise-wide policy is not operational control. See Herederos De Roberto
Gomez Cabrera, LLC v. Teck Res. Ltd., 43 F.4th 1303, 1312 (11th Cir. 2022); Alvarez
Galvez v. Fanjul Corp., 533 F. Supp. 3d 1268, 1284–85 (S.D. Fla. 2021); State v.
American Tobacco Co., 707 So. 2d 851, 855–56 (Fla. 4th DCA 1998). But unlike those
cases, the Complaint and the evidence cited here go beyond shared officers. They
allege that BBI personnel, by name, performed operational acts in Florida: scheduling
resident calls, handling complaints, signing leases, etc. So, while BBI and BBC
shared not only key officers (including significantly the “Chief Compliance Officer”
that would seem particularly relevant here where Plaintiffs are alleging repeatedly
that BBI and BBC violated multiple policies and procedures), they also shared core
operating departments (HR, Legal, Accounting, IT, Environmental/Health & Safety),
all the while BBI publicly described itself as continuing to “develop and maintain”
U.S. military housing. Drawing the required inferences in Plaintiffs’ favor, that is
enough at the prima facie stage to find that Plaintiffs have also alleged a colorable
basis to sustain long-arm jurisdiction based on BBC’s contacts with the Plaintiffs as
agent of BBI.
BBI’s best case in opposition, Phillips v. Dentsply Sirona, Inc., No. 1:25-cv-
21074, 2026 WL 871301 (S.D. Fla. Feb. 25, 2026), adopted in part, 2026 WL 867714
(S.D. Fla. Mar. 30, 2026), proves the point rather than refuting it. Phillips held that
a parent’s logo on a subsidiary’s website, and the parent’s mere awareness of
complaints, were passive contacts insufficient to confer jurisdiction. Id. at *8. Yet, as
the Court’s May 14th Order found repeatedly, the conduct alleged here is not passive.
It is the active, resident-facing engagement of personnel using BBI’s name to do the
operational work of housing management. Whether that engagement was truly BBI’s
or BBC’s is the disputed fact – again, a merits fact – that cannot be resolved on this
record.2
For now, the motion to dismiss lacks merit because a prima facie case has been
made in the Master Complaint that BBC’s many contacts with the state that are
directly related to the claims alleged may be imputed to BBI as BBC’s “strategic
partner” in this venture. See, e.g., Third Nat. Bank in Nashville v. WEDGE Group
Inc., 882 F.2d 1087, 1090 (6th Cir. 1989) (reversing grant of motion to dismiss for lack
of specific jurisdiction; jurisdiction was founded on Tennessee long arm statute based
on parent’s own participation in the subsidiary’s forum-state business, such as
sharing of officers between parent and Tennessee subsidiary, tax-sharing agreement
with the subsidiary, and dual officers participated in document negotiations).
2 We note that we are not resting our agency finding on Orlando Exec. Park,
Inc. v. Robbins, 433 So. 2d 491 (Fla. 1983), a case cited by Plaintiffs for the proposition
that a brand or logo alone creates apparent agency. The Florida Supreme Court
receded from that view in Mobil Oil Corp. v. Bransford, 648 So. 2d 119, 121 (Fla.
1995). The viable agency theory rests instead on replete allegations of conduct and
control in the Complaint, not just insignia. Similarly, statements in annual reports
and on websites are contributing factors, and are not, standing alone, reliable proof
of operational control. Yellow Pages Photos, Inc. v. Ziplocal, LP, No. 8:12-cv-755, 2012
WL 5830590, at *5 (M.D. Fla. Nov. 16, 2012). Here, based on the additional record
evidence cited, they corroborate the agency showing at least at this stage of the case.
D. Alter Ego: A Viable Additional Theory
Plaintiffs’ third theory is alter ego. Florida requires three requisite showings:
(1) domination and control so complete that the subsidiary had “no separate
existence” and was in fact the parent’s alter ego; (2) use of the corporate form
fraudulently or for an improper purpose; and (3) injury to the plaintiff caused by that
misuse. Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1349 (11th Cir.
2011) (citing Gasparini v. Pordomingo, 972 So. 2d 1053, 1055 (Fla. 3d DCA 2008)).
The party seeking to pierce bears “a very heavy burden.” Gov’t of Aruba v. Sanchez,
216 F. Supp. 2d 1320, 1362 (S.D. Fla. 2002). “To prevail under the alter ego theory,
the complaint must allege facts sufficient to pierce the corporate veil of the resident
corporation. . . . Black-letter law forbids equating a subsidiary with its parent absent
extraordinary justification to pierce a corporate veil.” Medlink Legal Sys., LLC v.
QIMA Ltd., 794 F. Supp. 3d 1265, 1274 (S.D. Fla. 2025) (citing K3 Enters., Inc. v.
Sasowski, No. 20-24441-CIV, 2021 WL 8363506, at *5 (S.D. Fla. Nov. 22, 2021) (“[T]he
alter ego theory applies when a non-resident defendant controls a resident
defendant.”) (emphasis in original)); see also Molinos, 633 F.3d at 1350 (Florida
“courts will not ignore this separate entity so long as the stockholders make ‘proper
use” of this fiction; they must not use limited liability to defraud creditors.’”) (quoting
Riesen v. Md. Cas. Co., 14 So. 2d 197 (Fla. 1943)).
The Court preliminarily addresses each prong to show that this could be a basis
for liability, but we do not have enough record evidence to make a finding one way or
the other. Because the Complaint should not be dismissed on other grounds, however,
this issue can be developed if need be as the case proceeds.
First, domination and control. The Eleventh Circuit’s twelve-factor “laundry
list” guides this inquiry. Lobegeiger v. Celebrity Cruises, Inc., 869 F. Supp. 2d 1350,
1355 (S.D. Fla. 2012). Several factors find support here: common ownership (BBI is
BBC’s sole member), common officers and directors (admitted, and extending to
BBC’s management by BBI executives), and common business departments
(admitted). Drawing inferences in Plaintiffs’ favor, an intermingling of daily
operations is suggested by the alleged conduct and representations of employees
wearing both BBI and BBC hats. Common ownership and common management
alone are admittedly insufficient to override corporate separateness, Alvarez Galvez,
533 F. Supp. 3d at 1284, but the showing here is not limited to those factors, and at
the prima facie stage it suffices to put the control question in genuine dispute.
Second, there is also the argument, albeit a weak one at this stage, for
improper purpose and injury. Florida law requires that the corporate form have been
“organized or used to mislead creditors or to perpetrate a fraud,” Burris v. Green, No.
3:12cv521, 2016 WL 5844165, at *6 (N.D. Fla. Aug. 26, 2016), and that the misuse
have caused the plaintiff’s injury, S-Fer Int’l, Inc. v. Stonesheets, LLC, No. 15-cv-
23015, 2016 WL 8808749 (S.D. Fla. July 22, 2016). Plaintiffs’ improper-purpose
allegation is pleaded “on information and belief” so BBI may have a point that “it is
never appropriate to plead jurisdictional allegations on information and belief.”
Admiral Ins. Co. v. VPRART, LLC, No. 21-cv-21312, 2021 WL 1318223, at *1 n.1 (S.D.
Fla. Apr. 7, 2021).
We agree that, if we did not have the allegations of direct liability against BBI,
an alter ego theory as an exception to traditional rules of personal jurisdiction would
likely not be enough at this stage based on this Complaint. And that does not even
take into account another problem with this theory: the non-resident anchor. BBI
correctly highlights a distinct legal obstacle here: courts in this Circuit have “declined
to apply the alter ego theory of jurisdiction to a non-resident via application of
Florida’s long-arm statute to another non-resident.” And that is because “the Florida
resident required for alter-ego jurisdiction” may not “be replaced by a non-resident
who is only within Florida’s jurisdiction via a separate application of Florida’s long-
arm statute.” Noah Techs., Inc. v. Rice, No. 2:14-cv-325, 2014 WL 6473664, at *6
(M.D. Fla. Nov. 18, 2014).
That principle would seemingly apply here. BBC is not a Florida citizen. If
alter ego jurisdiction stood alone, Noah and cases like it would pose a perhaps fatal
obstacle to imputing BBC’s contacts to BBI under an alter ego theory. See, e.g.,
Frybarger v. Salemme, 22-61437-CIV, 2022 WL 18530012, at *6 (S.D. Fla. Dec. 28,
2022) (declining to extend personal jurisdiction to a nonresident corporation via
application of the long-arm statute to another nonresident corporation based on the
alter ego theory of jurisdiction where “Plaintiff d[id] not cite, and the Court [wa]s
unaware of, any cases supporting such a theory of jurisdiction.”); K3 Enters., Inc.,
2021 WL 8363506, at *5 (“Under Plaintiff's theory, this Court would exercise personal
jurisdiction over these non-resident defendant corporations based on a non-resident
defendant’s contacts with Florida. This theory lacks support under Florida law.”).
But, again, we need not make a final determination on this score. This rule is
not necessarily a settled principle in Florida as no Florida Supreme Court or Eleventh
Circuit case has addressed it. And not all district courts have uniformly embraced it.
Compare PayDay Sols., LLC v. JTL Staffing & Payroll, LLC, 2025 WL 1101481, at
*1-2 (M.D. Fla. Apr. 14, 2025) (sustaining alter-ego jurisdiction over one non-resident
through another); Budget Inns of Pensacola Inc. v. Republic Servs. Inc., 2025 WL
3482176, at *1-2 & n.3 (N.D. Fla. June 13, 2025) (deferring the question as too
intertwined with the merits where both entities were non-resident); with Medlink,
794 F. Supp. 3d at 1274 (“Medlink’s alter ego theory of personal jurisdiction fails
because there is no resident entity.”).
And, in any event, this hurdle is one Plaintiffs need not surmount because the
direct-participation theory rests on BBI’s own contacts and requires no imputation
through BBC at all as discussed in Part II.B above. Cf. Garcia v. Character Techs.,
Inc., 785 F. Supp. 3d 1157, 1171-72 (M.D. Fla. 2025) (denying jurisdictional challenge
from non-residents who exercised direct, personal control equivalent to the company’s
own acts under alter ego jurisdiction). Plus, Plaintiffs have shown that BBI can be
subject to jurisdiction here as agents/joint venturers with BBC. That is enough to
deny this motion for further factual development and resolution at a later stage of
the case. If a more reliable alter ego theory of jurisdiction arises hereafter against
BBI then Plaintiff can better present it at that point.
E. The Intertwined-Facts Doctrine Counsels Against
Resolution of this Motion by Rule 12(b)(2) Motion
The three theories above share a single feature that controls the disposition.
The fact that decides each of them is also the fact that decides the merits. Did BBI
“directly participate” in NAS Key West operations, or was it a passive investor? Are
BBI and BBC so integrated that BBC’s extensive Florida contacts are attributable to
BBI? Did BBI derive substantial revenue and have de facto control over the NAS Key
West operations? The answer to all these questions determines both whether BBI has
sufficient Florida jurisdictional contacts, as well as whether BBI is ultimately liable
for the harms its personnel allegedly caused or concealed. The jurisdictional question
and the merits question are not merely related. They substantially overlap: the fact
that decides the jurisdictional question is a necessary and central component of the
merits determination.
When that is the case, the law is clear about what a court may and may not do.
It may test whether the plaintiff has made a prima facie showing. It should not
resolve the disputed fact against the plaintiff on competing affidavits, because doing
so would decide the merits under the guise of a threshold motion, without the
procedural protections that attend a merits determination. Eaton, 692 F.2d at 729–
32. The Fifth and Sixth Circuits articulate the same rule: where the jurisdictional
and merits facts overlap, the plaintiff need only make a prima facie case to survive,
and final fact-finding is deferred to a “full and fair” evidentiary hearing or to trial.
Walk Haydel, 517 F.3d at 241–42; Serras, 875 F.2d at 1214–16. See also Spector v.
LQ Motor Inns, Inc., 517 F.2d 278, 284 (5th Cir. 1975) (“The jurisdictional and
substantive issues are factually meshed. Therefore, decision on the jurisdictional
issues is dependent on decision of the merits and should have been reserved until a
hearing on the merits.”); McBeath v. Inter–Am. Citizens for Decency Comm., 374 F.2d
359, 362–63 (5th Cir. 1967) (“[W]here the factual and jurisdictional issues are
completely intermeshed, the jurisdictional issues should be referred to the merits, for
it is impossible to decide the one without the other.”).
In an extensive discussion of such a situation, as quoted in Part II.A above, the
Ninth Circuit noted that factual determinations, such as determinations of credibility
based on conflicting affidavits, should only rarely be resolved by a judge on a written
record. See Data Disc, 557 F.2d at 1284, 1285 n. 2 (“it is preferable that [a decision on
the jurisdictional facts] be made at trial, where a plaintiff may present his case in a
coherent, orderly fashion without the risk of prejudicing his case on the merits.”).
The Eleventh Circuit has squarely adopted that principle: district courts, faced
with jurisdictional challenges, can rely on this consideration and delay a full-fledged
evidentiary hearing on the intertwined allegations for trial, or even post-trial
proceedings. AcryliCon, 985 F.3d at 1364-65 (court has discretion to do so under Rule
12(i) if it deems it too premature to adjudicate, before trial, that ultimate factual
question). It is thus not surprising that courts in our District have applied the same
principle to deny dismissal where the jurisdictional and merits facts coincide.
Take Nissim Corp. v. ClearPlay, Inc., 351 F. Supp. 2d 1343 (S.D. Fla. 2004),
where Judge Huck declined to resolve a contested 12(b)(2) motion on the affidavits
because “the jurisdictional facts are intermeshed with the ultimate question on the
merits,” and instead deferred the jurisdictional determination so that discovery could
proceed. Id. at 1351–52. The court reached that result even though the defendant’s
affidavit purported to be “uncontroverted,” reasoning that crediting it on a paper
record “would empower a defendant to defeat personal jurisdiction merely by filing a
written affidavit contradicting jurisdictional facts alleged by a plaintiff.” Id. at 1350–
51 (quoting Serras, 875 F.2d at 1215).
Applying that reasoning here, BBI’s submission, based on affidavits
recharacterizing named, resident-facing personnel as employees of a different entity,
suffers from the same problem. So too did the defendant in another closely analogous
case just last year, causing the court to defer an alter-ego jurisdictional question
because it was “too closely intertwined with the merits.” Budget Inns, 2025 WL
3482176, at *1–2 & n.3 (denying motion to dismiss without prejudice “[a]lthough the
record is fully developed and no further discovery is necessary, this issue is
inextricably intertwined with the merits because a ruling on alter ego for purposes of
personal jurisdiction is in effect a ruling directly on the merits as to RSI – the Court
cannot decide one without ruling on the other.”) (citing and quoting Spector, 517 F.2d
at 284).
And this is particularly compelling here where those dispositive facts – who
employed and directed the resident-facing personnel, the true scope of BBI’s control
over BBC, the financial flows BBI derives from NAS Key West, and the precise
corporate relationship between BBI and BBC – lie peculiarly within Defendants’
knowledge. Plaintiffs are entitled to serve discovery directed at exactly these
questions, and should be able to depose all the relevant operational personnel to ask
who they believed they were working for during the relevant time periods. Discovery
is the mechanism the law prescribes for resolving the intertwined facts that a paper
record cannot. That process should be completed before any final determination is
made on BBI’s jurisdictional challenges. See, e.g., Jackam v. Hosp. Corp. of Am.
Mideast, 800 F.2d 1577, 1582 (11th Cir. 1986) (“As with allegations of a complaint
concerning sufficiency of a claim, [plaintiffs] should be entitled to allege facts to
support a reasonable inference of jurisdiction within the state and an opportunity for
discovery.”) (reversing grant of jurisdiction motion for further factual development);
Phoenix Senior Living LLC v. Anniston Assisted Living, LLC, No. 1:23-cv-02669-JPB,
2024 WL 5671714, at *10 (N.D. Ga. Nov. 18, 2024) (deferring ruling on personal
jurisdiction where allegations were “inextricably intertwined with [plaintiff's] alter
ego theory and with the merits of this case”); Forbes v. Concord Advice, LLC, No.
8:19-cv-2980, 2020 WL 3250232, at *1-2, *7 (M.D. Fla. Apr. 21, 2020) (declining to
rule at the motion to dismiss stage where personal jurisdiction was based on alter ego
allegations and the determination of the issue also directly implicated the merits of
liability).
BBI’s supplemental brief presses the contrary view: that on a 12(b)(2) motion
the Court must “weigh the evidence” and that Plaintiffs must “prove—not merely
allege” jurisdiction. As a general statement of the burden once a defendant submits
affidavits, that is correct in many cases. Future Tech., 218 F.3d at 1249. But it omits
the limiting principle described above, which is no surprise given that BBI’s motion
and supplemental memorandum do not mention these binding and non-binding
authorities.
The Court, however, is persuaded by these cases. The duty to weigh evidence
and the elevation of a plaintiff’s burden to a preponderance standard attach only
where the jurisdictional facts are deemed, in the trial court’s discretion, separate and
apart from the underlying merit allegations. In that case, a court can make a
preponderance of evidence finding if it holds a pretrial evidentiary hearing.
AcryliCon, 985 F.3d at 1364 (“The district court can impose the preponderance-of-
the-evidence standard right away, during the pre-trial phase, by conducting an
evidentiary hearing.”); Walk Haydel, 517 F.3d at 241-42.
But where the merits and jurisdictional facts are closely intertwined, such a
pretrial hearing is not required under Rule 12(i) and the court can defer for later
proceedings. AcryliCon, 985 F.3d at 1364 (“Alternatively, the district court can wait
to impose a preponderance-of-the-evidence standard until trial. If the court chooses
this course, then it reviews the motion to dismiss under a prima facie standard.”).
We follow that option here. And on a paper record, with the jurisdictional facts
inseparable from the merits, the prima facie standard governs, and disputed
inferences run in Plaintiffs’ favor. That requires denial of the motion at this stage
subject to later factual development and a plenary hearing of the issue at trial or post-
trial if necessary. As Judge Huck explained, a court “is inclined to give greater weight
. . . to the plaintiff’s version” of contested facts, ‘particularly when the jurisdictional
questions are apparently intertwined with the merits of the case.’” Nissim, 351 F.
Supp. 2d at 1346 (quoting Delong Equip. Co. v. Wash. Mills Abrasive Co., 840 F.2d
843, 845 (11th Cir. 1988)). BBI’s affidavits may ultimately prove accurate; but they
cannot displace Plaintiffs’ documentary showing on a paper record on the pending
motion. And our review of that paper record reveals a voluminous amount of evidence
that Plaintiffs can rely on to make their case, as evidenced by all the many
supplemental affidavits and counter-statements of fact that BBI had to engage in
during the course of briefing on this motion. BBI does not appreciate, however, that
having to marshal so many explanations for the record evidence presented by
Plaintiffs only underscores the weakness of its position at this stage of the case.
Finally, the Eleventh Circuit’s decision in Posner v. Essex Insurance Co., on
which BBI relies for the proposition that a 12(b)(2) movant’s affidavits shift the
burden, is not to the contrary. 178 F.3d at 1209. Posner recognizes the circumstance,
detailed above, in which the jurisdictional inquiry can be resolved on the papers
because the jurisdictional facts are genuinely separable from the merits. Id. at 1214–
15. That carve-out has been narrowly cabined; subsequent decisions have
distinguished Posner repeatedly, declining to extend it where the factual overlap with
the merits is substantial. This is not a case of separable facts that do not heavily
overlap the merits.
In sum, we are not finding that BBI is subject to jurisdiction. Perhaps the
resident-facing personnel cited in the Complaint were indeed acting for BBC, not BBI.
And it may be the case that BBI did not overwhelmingly dominate and control BBC
or use the corporate form improperly. Those questions remain fully open, and BBI
remains free to renew its challenge on a developed record before final judgment. But,
on the present record, Plaintiffs have made the prima facie showing the law requires,
and the contested facts may not be resolved against them now.
F. The Exercise of Jurisdiction Comports with Due Process
Because the long-arm statute is satisfied on a prima facie basis, the Court
reaches the constitutional question. Specific jurisdiction satisfies due process where
(1) the plaintiff’s claims arise out of or relate to the defendant’s forum contacts; (2)
the defendant purposefully availed itself of the forum; and (3) the exercise of
jurisdiction comports with fair play and substantial justice. Mosseri, 736 F.3d at 1355;
Del Valle, 56 F.4th at 1275–77.
The first two prongs are met on the prima facie record. Plaintiffs’ claims arise
directly from the resident-facing conduct—the calls, the complaint responses, the
leases—alleged to be BBI’s. Purposeful availment is shown under the effects test,
which is satisfied where “the tort was intentional, aimed at the forum state, and
caused harm that the defendant should have anticipated would be suffered in the
forum state,” Del Valle, 56 F.4th at 1276, and under the minimum-contacts test as
well. A parent whose personnel and policies are alleged to have governed housing at
a Florida installation, and whose residents were injured there, should reasonably
anticipate being haled into court in Florida. See, e.g., PFM Air, 751 F. Supp. 2d at
1278-79 (parent was subject to jurisdiction in Florida based on joint venture with its
subsidiary that allegedly injured Florida customers; “Florida certainly has an interest
in adjudicating a dispute arising in part due to activities carried on within its
borders”).
BBI’s contrary submission relies on Herederos, where the Eleventh Circuit
held that “[t]he incidental effects of a defendant’s actions are not by themselves
sufficient to justify jurisdiction.” 43 F.4th at 1311. BBI quotes the case accurately,
but its facts are remote from ours. Herederos involved a Canadian mining company
whose only forum connection was that the effects of its foreign operations were felt in
the United States. The contacts alleged here are not incidental byproducts of distant
operations, as they are primary acts: BBI’s own personnel performing BBI’s own
obligations to Florida residents under documents bearing BBI’s name. On the prima
facie record, the third prong poses no obstacle: BBI has not argued that litigating in
Florida would be unfairly burdensome, and Florida’s interest in adjudicating injuries
to its residents in housing on its soil is substantial. There is no due process problem
in proceeding with jurisdiction over BBI pending further factual development.
G. Jurisdiction Reaches the Entire Case, Not Select Plaintiffs or
Claims
Finally, in the supplemental brief, BBI advances two narrower fallback
positions: that any jurisdiction arising from the resident-facing communications can
reach only those Plaintiff families who have alleged such contacts, and that it can
support only certain claims, like fraud and misrepresentation, but not the breach-of-
contract and negligence claims. Plaintiffs respond that both arguments come too late,
having surfaced for the first time on supplemental briefing after several rounds of
dismissal motions. Plaintiffs’ position has merit. See In re Egidi, 571 F.3d 1156, 1163
(11th Cir. 2009) (arguments not raised in a party’s earlier briefing are ordinarily
treated as waived). But the Court need not rest on waiver, because the arguments
fail on their merits.
Both positions founder on the doctrine of pendent personal jurisdiction. Once
a court has specific jurisdiction over a defendant on one claim, it has jurisdiction over
the entire case when “all of the claims ar[i]se from the same jurisdiction generating
event.” SkyHop Techs., Inc. v. Narra, 58 F.4th 1211, 1231 (11th Cir. 2023) (quoting
Cronin v. Wash. Nat’l Ins. Co., 980 F.2d 663, 671 & n.10 (11th Cir. 1993)). Courts in
this District apply that principle where tort and contract claims “arise out of a
common nucleus of operative facts,” so that jurisdiction established over one set of
claims extends to the others. Exhibit Icons, LLC v. XP Cos., 609 F. Supp. 2d 1282,
1299 n.15 (S.D. Fla. 2009). The reason why is obvious: the purpose of the personal-
jurisdiction inquiry (ensuring that the defendant has minimum contacts such that
suit in the forum comports with fair play and substantial justice) is largely served
once sufficient contacts are shown for any claim arising from the same conduct.
SkyHop, 58 F.4th at 1231.
That doctrine answers BBI’s claim-by-claim argument directly. Plaintiffs’
claims (negligence, breach of contract, misrepresentation, fraud, and related theories)
all arise from a single course of conduct: the leasing, management, and maintenance
of NAS Key West housing, and the handling of residents’ complaints about hazardous
conditions in their homes. The resident-facing communications are not tethered to
the fraud counts alone; they are the operational acts from which every claim springs
like answering mold and safety complaints, signing leases, and running the helpdesk.
Because all these claims share that nucleus, a prima facie showing of jurisdiction over
BBI as to any of them reaches them all.
BBI’s reliance on Argos v. Ciuchini is thus misplaced. There, the complaint
joined two genuinely distinct sets of facts, a business-sale contract dispute and a
separate trademark controversy, so that jurisdiction over the one did not carry over
to the other as the court expressly acknowledged. 446 F. Supp. 3d 1073, 1083 (S.D.
Fla. 2020) (“These claims arise from two separate sets of factual allegations: (1) the
contract claim allegations concerning the sale of Argos France to Cosmo; and (2) the
various tort claim allegations concerning Defendants’ alleged interfering and
infringing activities following the creation of Argos Indiana. As explained below, only
the first set of allegations sets forth sufficient contacts to hale Defendant Cosmo into
this forum.”). So it is not just a simple claim-by-claim analysis in the manner BBI
believes, but more the groupings of similar facts with similar theories that matter.
Id. at 1087 (“The Amended Complaint presents the Court with two separate sets of
factual allegations — one set giving rise to Plaintiffs’ contract claims (Counts VI and
VII) and a slightly broader set giving rise to Plaintiffs’ remaining tort claims. The
Court analyzes Plaintiffs’ contract and tort claims separately.”).
Here there is one nucleus of relevant facts, not two. If that set of facts gives
rise to a contract theory as well as a tort theory, then specific jurisdiction is proper
as to both. And here that is precisely what we are faced with in this Master
Complaint. BBI’s attempt to parse out those allegations more narrowly does not pass
muster.
The family-by-family argument fails for a related reason. The long-arm basis
the Court has found sufficient under § 48.193(1)(a)(1) is BBI’s collective “general
course of business activity in the State,” supra Part II.B, not a separate qualifying
contact with each individual household. And the LaCour declaration offers its
communications expressly as representative “examples” of a broader practice,
LaCour Decl. ¶ 2, supporting the reasonable inference, which the Court must draw
in Plaintiffs’ favor, that BBI’s resident-facing engagement was not confined to the
handful of families whose emails happen to appear in the present record. At the prima
facie stage, the reach of jurisdiction is not cabined to those families.
BBI’s remaining move, which seeks to isolate each undisputed fact (its indirect
Florida revenue, the shared officers and departments, the BBI Helpdesk), and
observing that no one of them, standing alone, establishes jurisdiction, fares no
better. The agency and alter-ego inquiries are multi-factored and expansive; they ask
whether all the relevant factors, taken together, show the requisite control and
connection. See Herederos, 43 F.4th at 1312 (assessing alter ego under the totality of
the circumstances). A defendant cannot defeat that collective inquiry by
disaggregating it. BBI is right, to be sure, that none of these facts is independently
sufficient, and a fuller record may show that even together they fall short. But on the
present prima facie record, construing the evidence in Plaintiffs’ favor, they reinforce
rather than undermine the showing already made.
III. CONCLUSION AND RECOMMENDATION
BBI asked the Court to decide, on affidavits and without a hearing, that it was
a stranger to NAS Key West. The record will not bear that conclusion at this stage.
Plaintiffs have come forward with concrete evidence that BBI itself acted in Florida
in the very respects that give rise to this suit. BBI’s answer that those actors belonged
to its subsidiary may prove true. But it is a contested fact, inseparable from the
merits, that cannot be resolved against Plaintiffs on this record.
Accordingly Defendant Balfour Beatty Investments, Inc.’s Motion to Dismiss
for Lack of Personal Jurisdiction [D.E. 161] should be DENIED. The matter can be
renewed, if appropriate, at a later stage of the case or at trial.
Pursuant to Local Magistrate Rule 4(b) and Fed. R. Civ. P. 73, the parties
have fourteen (14) days from service of this Report and Recommendation within
which to file written objections, if any, with the District Judge. Failure to timely file
objections shall bar the parties from de novo determination by the District Judge of
any factual or legal issue covered in the Report and shall bar the parties from
challenging on appeal the District Judge’s Order based on any unobjected-to factual
or legal conclusions included in the Report. 28 U.S.C. § 636(b)(1); 11th Cir. R. 3-1; see,
e.g., Patton v. Rowell, 678 F. App’x 898 (11th Cir. 2017); Cooley v. Comm’r of Soc. Sec.,
671 F. App’x 767 (11th Cir. 2016).
DONE AND SUBMITTED in Chambers at Miami, Florida, this 8th day of
July, 2026.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge