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Bits & Pieces

High Tech v. Beth Trans., 2018 U.S. Dist LEXIS 96060

High Tech Indus. v. Bethel Transp., Ltd.
United States District Court for the Southern District of Florida
June 6, 2018, Decided; June 6, 2018, Entered on Docket
Case No. 18-14173-CIV-MARRA

Reporter
2018 U.S. Dist. LEXIS 96060 *
HIGH TECH INDUSTRIES, INC., a Florida limited liability company, Plaintiff, vs. BETHEL TRANS, LTD., a foreign corporation, Defendant.

ORDER GRANTING MOTION TO DISMISS
THIS MATTER is before the Court upon Defendant’s Motion to Dismiss for Lack of Personal Jurisdiction and Insufficient Service of Process and Motion to Vacate Default [DE 4]. The motions are fully briefed and ripe for review. The Court has carefully considered the entire Court file, including the motion, response, and reply, and is otherwise fully advised in the premises.

Introduction
Plaintiff, High Tech Industries, Inc. (“Plaintiff”), filed its Complaint against Defendant, Bethel Trans, Ltd. (“Defendant”), on March 8, 2018 seeking to recover for repairs to a woodworking machine (a Homag Koa Edgebander) (“Edgebander”) allegedly damaged while in transit from Charlotte, North Carolina1 to West Palm Beach, Florida. The action, initially filed in state court, was removed pursuant to 28 U.S.C. §§ 1441 and 1446 alleging original jurisdiction [*2] pursuant to § 11706 or § 14706 of Title 49.
A default was entered against Defendant on April 26, 2018, in the state court proceeding based on the Affidavit of Process Server stating that personal service was perfected on Defendant’s Registered Agent on March 26, 2018. Defendant asserts that its agent was not personally served, and the default should be vacated. In its response, Plaintiff stipulates to have the default vacated in order to “allow this case to move to resolution before this Court.” DE 6 at 4.
Plaintiff is a Florida corporation doing business with offices in Vero Beach, Florida. The Complaint alleges that Defendant is a foreign corporation2 that transports goods throughout the United States and regularly engages in business in Florida. Complaint (“Compl.”) ¶ 2. The Complaint further alleges that Defendant committed acts of negligence in transmitting goods to Plaintiff’s customer in Florida. Compl. ¶ 3. Defendant asserts these allegations are inaccurate and insufficient to give rise to jurisdiction over it.

Standard of Review
A plaintiff seeking the exercise of personal jurisdiction over a nonresident defendant bears the initial burden of pleading enough facts to make out a prima facie [*3] case for personal jurisdiction. United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir. 2009); Polski Unie Oceaniczne v. Seasafe Transport AIS, 795 F.2d 968, 972 (11th Cir. 1986). A prima facie case requires enough evidence to withstand a motion for directed verdict. Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990); see also Morris v. SSE, Inc., 843 F.2d 489, 492 (11th Cir. 1988); S.E.C. v. Carrillo, 115 F.3d 1540, 1542 (11th Cir. 1997).
Once this is done, the burden then shifts to the nonresident defendant to challenge the plaintiff’s allegations by affidavits, documentary evidence, or testimony. Internet Solutions Corp. v. Marshall, 557 F.3d 1293, 1295 (11th Cir. 2009). If the defendant does so, the burden shifts back to the plaintiff to prove personal jurisdiction by affidavits, documentary evidence, or testimony. Id.; see also, Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir. 2000); Posner v. Essex Insurance Co., 178 F.3d 1209, 1215 (11th Cir. 1999). Where the plaintiffs evidence and defendant’s evidence conflict, all reasonable inferences must be construed in favor of the plaintiff. Stubbs v. Wyndham Nassau Resort and Crystal Palace Casino, 447 F.3d 1357, 1360 (11th Cir. 2006); Molina v. Merritt & Furman, 207 F.3d 1351, 1356 (11th Cir. 2000); Morris v. SSE, Inc., 843 F.2d 489, 492 (11th Cir. 1988).
Defendant has submitted evidentiary materials in support of its position and Plaintiff relies on representations made on Defendant’s website. While the consideration of such materials ordinarily would convert a motion to dismiss into one for summary judgment, see Fed. R. Civ. P. 12(b), in the context of personal jurisdiction, the motion remains one to dismiss even if evidence outside the pleadings is considered. Bracewell v. Nicholson Air Services, Inc., 748 F.2d 1499, 1501 n.1 (11th Cir. 1984).
An evidentiary hearing on a motion to dismiss for lack of personal jurisdiction is discretionary but not mandatory. See, e.g., Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990); Bracewell v. Nicholson Air Servs., Inc., 748 F.2d 1499, 1504 (11th Cir. 1984). Because the parties did not request an evidentiary hearing, the [*4] Court exercises its discretion not to conduct one.

Discussion

Personal Jurisdiction
A two-step inquiry is applied to determine whether the exercise of personal jurisdiction over a nonresident defendant is proper: (1) whether personal jurisdiction exists over the nonresident defendant under Florida’s long-arm statute, and (2) if so, whether the exercise of jurisdiction would violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Horizon Aggressive Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162, 1166 (11th Cir. 2005); Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1350 (11th Cir. 2013).
Among other provisions, the Florida long-arm statute permits the state’s courts to exercise jurisdiction over nonresident defendants who commit certain specific acts. Fla. Stat. § 48.193. For example, § 48.193(1)(b) of the statute permits a Florida court to assert jurisdiction over any person who “commit[s] a tortious act within this state.” Fla. Stat. § 48.193(1)(b).3 Plaintiff asserts that specific personal jurisdiction4 over Defendants is established under this section of the Florida statute.

Long Arm Statute
The Complaint alleges that Defendant is in the business of providing interstate transportation of goods and that it regularly engages in business in Florida. Plaintiff makes this statement based exclusively on representations appearing on Defendant’s website. Plaintiff asserts that Defendant advertises itself as a complete transportation company [*5] with a “fleet of vehicles, trained drivers and friendly staff” able to “help business[es] like yours get dependable, excellent shipping from loading dock to customer site” throughout the United States, Mexico and Canada.
Plaintiff responds to the motion to dismiss for lack of personal jurisdiction by quoting Defendant’s website (www.betheltrans.com) as follows:
Bethel Transport Ltd. & its sister companies Bethel Trucking Company Ltd & BeTrans Ltd. offer dedicated truckload & less-than-truckload services to our customers throughout North America including Canada & Mexico. Bethel’s services include wide-ranging transportation management of dedicated company equipment or Bethel-qualified motor carriers. This involves providing different types of equipment, dispatch management, [and] reporting to Bethel’s shippers. Management of our customers’ hauling requirements and our ability to supply critical information are vital aspects of Bethel’s transportation services. Bethel’s supervision of complex & time-consuming transportation requirements allows our shippers to focus on their core business while also reducing their transportation costs.
The above quoted language states that the services [*6] Plaintiff provides are: transportation management; equipment; dispatch management; reporting; supplying critical equipment and supervision. It does not state that Defendant is a motor carrier, or that it conducts business in Florida.
Defendant’s Motion to Dismiss is supported by evidence in the form of the Declaration of Robert P. Houston, the sole manager and statutory agent of Bethel Trans, along with the attached Bill of Lading. These documents provide credible evidence that:
• Defendant is a licensed transportation broker in the business of arranging for transportation of cargo by interstate motor carriers.
• Defendant is not in the business of providing interstate transportation of cargo nor is it in the business of packaging, loading, or securing cargo for transportation.
• Defendant does not own any commercial motor vehicles used for the transportation of cargo, does not have an active US DOT number authorizing it to operate commercial vehicles transporting passengers or hauling cargo in interstate commerce.
• Defendant is not authorized by the Florida Division of Corporations to conduct business in Florida, does not have an office or place of business in Florida, and does not have [*7] any employees in Florida, does not transact any business in Florida, and does not have any manager or member located in Florida.
• Defendant does not own or rent any real or personal property in Florida, does not maintain telephone listings or mailing addresses in Florida, is not obligated to and does not pay any taxes in Florida, and does not have a registered agent for service of process in Florida.
• Plaintiff contacted Defendant on December 19, 2017 to arrange for transportation of a Edgebander from Marco Group, Inc. in Neosho, Missouri to Euro Construction in West Palm Beach, Florida.
• Defendant arranged for McInthosh Trucking LLC, a Missouri interstate trucking company, to transport the machine.
• The motor carrier for transportation of the Edgebander was Mcintosh Trucking, LLC.
• At no time was the Edgebander ever in the possession or control of Defendant. Defendant did not load the machine onto the Mcintosh vehicle, and Defendant did not fail to secure the machine during transport.
Plaintiff has not presented any evidence to the contrary. Any damage sustained by the machine must have occurred at the point of pickup and loading in Neosho, Missouri, during transport by Mcintosh Trucking, [*8] or during unloading in West Palm Beach, Florida. These facts do not support Florida jurisdiction over Defendant for a business transaction that occurred in Ohio.
In contrast to Defendant’s evidence, Plaintiff’s Complaint and response is devoid of any factual allegations warranting this Court’s exercise of jurisdiction over Defendant. Plaintiff has failed to offer any evidence that Defendant either transported the Edgebander or “regularly engages in business in Florida.” See, e.g., Northwestern Aircraft Capital Corp. V. Stewart, 842 So.2d 190 (Fla. Dist. Ct. App. 2003) (the complaint contained specific detailed contacts with Florida and the jurisdictional argument was supported by affidavits and depositions).5 Therefore, the Complaint’s allegations are insufficient to make a prima facie case that Defendant committed a tortious act in Florida within the meaning of Fla. Stat. § 48.193(1)(b).
Plaintiff fails to make a prima facie showing that Defendant is subject to specific jurisdiction under Fla. Stat. § 48.193; therefore, it is unnecessary to address whether exercising personal jurisdiction over Defendant would offend due process or traditional notions of fair play and substantial justice. Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990) (“Only if both prongs of the analysis are satisfied may a federal or state court exercise personal jurisdiction over a nonresident [*9] defendant.”). Moreover, since this case is being dismissed because the Court lacks personal jurisdiction over Defendant, it is unnecessary to consider Defendant’s other requests for relief relating to alleged insufficient service of process and vacatur of the default found by the state court. Accordingly, it is hereby
ORDERED AND ADJUDGED that Defendant’s Motion to Dismiss for Lack of Personal Jurisdiction [DE 4] is GRANTED. Plaintiff’s Complaint is dismissed without prejudice. All pending motions are DENIED as moot. The Clerk is directed to CLOSE this case.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida, this 6th day of June, 2018.
/s/ Kenneth A. Marra
KENNETH A. MARRA
United States District Judge

FINAL JUDGMENT
Based upon the Court’s Order granting Defendant Bethel Trans, Ltd.’s Motion to Dismiss for Lack of Personal Jurisdiction, which was entered this date, judgment is entered for Defendant Bethel Trans, Ltd., and Plaintiff, High Tech Industries, Inc., shall take nothing from this case. This case is dismissed without prejudice.
Done and Ordered in Chambers in West Palm Beach, Palm Beach County, Florida, this 6th day of June, 2018.
/s/ Kenneth A. Marra
Kenneth [*10] A. Marra
United States District Judge

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