Pvc Windoors Inc v. Construc

• Decision Date: 05 March 2010
• Docket Number: No. 08-10401,08-10401
• Citation: 598 F.3d 802
• Parties: PVC WINDOORS, INC.,Plaintiff-Appellant, v. BABBITBAY BEACH CONSTRUCTION, N.V., a Saint Maarten Company, Babbitbay Beach Development Corporation, B.V., a Saint Maarten Closed Company, Columbia Properties St. Maarten, LLC, an Anguillan Limited Liability Company, Sun Martin Limited, an Aguillan Dissolved Corporation, by and through their last Board of Directors, Columbia Sussex Corporation, a Kentucky Corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

598 F.3d 802

PVC WINDOORS, INC., Plaintiff-Appellant, v. BABBITBAY BEACH CONSTRUCTION, N.V., a Saint Maarten Company, Babbitbay Beach Development Corporation, B.V., a Saint Maarten Closed Company, Columbia Properties St. Maarten, LLC, an Anguillan Limited Liability Company, Sun Martin Limited, an Aguillan Dissolved Corporation, by and through their last Board of Directors, Columbia Sussex Corporation, a Kentucky Corporation, Defendants-Appellees.

No. 08-10401

United States Court of Appeals Eleventh Circuit.

Decided : March 5, 2010

COPYRIGHT MATERIAL OMITTED

Robert A. Stok, Stok & Associates, P.A. Miami, FL, for Plaintiff-Appellant.

George M. Vinci, Jr., Amy Lynn Christianson, Spector Gadon & Rosen, LLP, St Petersburg, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before T JO FLAT and CARNES Circuit Judges, and THRASH, ^* District Judge.

TJOFLAT, Circuit Judge:

This case arises out of two contracts for the supply and installation of windows and doors for a hotel construction project on the island of Saint Maarten in the Netherlands Antilles. PVC Windoors, Inc. sued the parties with whom it contracted and others for breach of contract and fraud in an effort to obtain payment for work it performed.¹ The defendants moved the district court to dismiss the case on the ground that the court lacked jurisdictio8n over their persons, and the court granted their motion. Because the defendants did not do business in Florida, were not otherwise subject to the reach of Florida's longarm statute, and lacked minimum contacts with Florida, we affirm the decision of the district court.

I. A.

PVC Windoors, Inc. ("PVC") is a Florida corporation with its principal place of business in Miami-Dade County, Florida. PVC supplies and installs doors and windows for residential and business customers. None of the defendants is incorporated in Florida or maintains a principal place of business in Florida. Babbitbay Beach Construction, N.V. ("Babbitbay Construction") and Babbitbay Beach Development Corporation, BV. ("Babbitbay Development") are Saint Maarten companies with their principal places of business in Saint Maarten. Netherlands Antilles. Columbia Properties Saint Maarten, LLC ("CP") is an Anguillan limited liability company with its principal place of business in Anguilla. Sun Martin Limited ("Sun") was an Anguillan company with its principal place of business in Anguilla, but was dissolved on or about March 24, 2006, prior to the commencement of this litigation. Columbia Sussex Corporation ("Columbia Sussex") is a Kentucky corporation with its principal place of business in Fort Mitchell, Kentucky.

On February 17, 2006, PVC entered into two separate contracts to supply and install windows and doors for the Dawn Beach Resort & Spa and Dawn Beach Resort Condominium in Saint Maarten (the "Project"). The first contract was with Babbitbay Development; PVC agreed to transport the materials and equipment to be used in the installation of the windows and doors on the Project ("Agreement 1"). The second contract was with Babbitbay Construction; PVC agreed to supply the labor for the installation ("Agreement 2").² Columbia Sussex, CP, and Sun did not sign either of the contracts. Prior to the execution of the two agreements, Columbia Sussex orally represented to PVC that, if PVC contracted with Babbitbay Construction and Babbitbay Development, Columbia Sussex would guarantee Babbitbay Construction's and Babbitbay Development's performance of the respective contracts, including the sums due PVC for the work.

B.

Shortly after work began on the Project, contractual disputes arose between the contracting parties. When the disputes were not resolved to PVC's satisfaction, PVC" filed a multi-count complaint in the Circuit Court of Miami-Dade County, Florida, against Babbitbay Construction, Babbitbay Development, Columbia Sussex, CP, and Sun. PVC alleged numerous material breaches of the two contracts: Babbitbay Construction and Babbitbay Development failed to pay for completed work; they required PVC to perform extra work without compensation; they changed the terms of the contracts by requiring PVC to employ a shipping agent and a subcontractor; they wrongfully terminated the agreements; and Columbia Sussex, which had guaranteed the performance of the contracts, had failed to pay PVC in accordance with the terms of the agreements. In addition, PVC alleged that Columbia Sussex had fraudulently induced it to enter into the contracts by representing that if PVC contracted with Babbitbay Construction and Babbitbay Development, it would guarantee those parties' performance of their obligations.

The defendants removed the case to the United States District Court for the Southern District of Florida. See 28 U.S.C. § 1441. One month later, they jointly moved the court to dismiss them from the case for lack of personal jurisdiction. In lieu of responding to the motion to dismiss, PVC filed an amended complaint.

The amended complaint contains 151 paragraphs and ten counts.³ Seventythree paragraphs precede Count I and describe the events that led to Agreements 1 and 2 as follows. In early 2005, Columbia Sussex solicited bids from contractors in Florida, including PVC, to supply and install windows and doors for the Dawn Beach Resort & Spa and Dawn Beach Resort Condominium in Saint Maarten. PVC responded to the solicitation and, in November 2005, Columbia Sussex requested PVC to submit a bid. PVC complied. In February 2006, Columbia Sussex informed PVC as follows: PVC's bid was being forwarded to the companies developing the Project, Babbitbay Construction and Babbitbay Development. Although Columbia Sussex was the "real party in interest" in the development of the Project, any contracts PVC entered into would be with those two firms. Columbia Sussex, however, would "guaranty [sic] payment and performance of such agreements." Babbitbay Construction and Babbitbay Development accepted PVC's bid and entered into separate contracts, Agreements 1 and 2.

Count I incorporates paragraphs one through seventy-three, and each of the nine succeeding counts incorporates all preceding counts, such that Count X amounts to an amalgamation of all counts of the complaint.⁴ Among the allegations preceding Count I is the claim that Babbitbay Construction, Babbitbay Development, CP, and Sun are alter egos and mere instrumentalities of Columbia Sussex, and that the latter is the party that actually controlled these entities and engaged in the conduct giving rise to PVC's claims.⁵ Count I, "fraud in the inducement, " alleges that Columbia Sussex and the other defendants collaborated to make representations to PVC to induce it to enter into Agreement 1, knowing that PVC would not be paid for its work. Count II repeats the same "fraud in the inducement" allegation with respect to Agreement 2. Counts III and IV allege that the defendants breached Agreements 1 and 2, respectively. Count V alleges that Columbia Sussex fraudulently induced PVC to enter into Agreements 1 and 2 by promising that it would guarantee the payments due PVC under those agreements, a promise that it intended not to keep. Count VI alleges that Columbia Sussex breached that promise. Count VII purports to be for "declaratory judgment, " adjudicating the defendants' joint and several liability for the payments due PVC under Agreements 1 and 2, while Counts VIII, IX, and X state "alternative" claims for unjust enrichment, quantum meruit, and open account, respectively.

The amended complaint alleges that the defendants' "wrongful acts" subjected the defendants to process under Florida'slong-arm statute (and thus to the district court's jurisdiction over their persons) because Columbia Sussex had solicited bids for the Project work from Florida contractors, including PVC, and, in the process, had used "telephonic and other electronic means in Florida."

The defendants responded to the amended complaint by jointly moving the district court to dismiss the case under Federal Rule of Civil Procedure 12(b)(2) for lack of jurisdiction over their persons. Their motion asserted that the amended complaint on its face showed that none of PVC's claims related to any activities that took place in Florida, and that the mere fact that Babbitbay Construction and Babbitbay Development were parties to a contract with PVC, a Florida corporation, did not satisfy the minimum contacts requirement of personal jurisdiction. Attached to the motion to dismiss were four affidavits of Theodore R. Mitchel, one for each of the defendants except Columbia Sussex. Each affidavit denied that the defendant maintained an office in Florida, appointed an agent for service of process in Florida, had property in Florida, or employed anyone in Florida.

PVC responded to the defendants' motion by filing the affidavits of PVC's chief executive officer, Gaston Boudreau, and its director of sales, Yves Saint-Pierre. These affidavits were identical. They stated that "Columbia Sussex... informed [PVC] on or about February 2006, in part in Florida... via telephonic and other electronic means that [PVC] would have to enter into written agreements with [Babbitbay Construction] and [Babbitbay Development], " and that "Columbia Sussex... would guaranty [sic] payment and performance of such agreements."

After briefing was complete, the district court granted the defendants' motions to dismiss for lack of personal jurisdiction and dismissed the case without prejudice. Citing Burger King Corp. v. Rudzeivicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), the court found that the defendants' activity in Florida was minimal and clearly insufficient to satisfy the "minimum contacts" required by the Due Process Clause of the Fourteenth Amendment. PVC now appeals that determination.⁶

II.

We undertake a two-step inquiry to determine whether the exercise of personal jurisdiction over a nonresident defend...