Baron v. Acasta Capital

• Decision Date: 18 July 2017
• Docket Number: Civil Action No. 16-25118-Scola
• Parties: Marc Baron, Plaintiff, v. Acasta Capital, and others, Defendants.
• Court: U.S. District Court — Southern District of Florida

Marc Baron, Plaintiff,
v.
Acasta Capital, and others, Defendants.

Civil Action No. 16-25118-Scola

United States District Court for the Southern District of Florida

July 18, 2017

Order Granting Motion to Dismiss

The Plaintiff Marc Baron, proceeding pro se, brings this suit against the Defendant Acasta Capital ("Acasta") based on a dispute over a cruise vacation business venture. Acasta has filed a motion to dismiss (Mot., ECF. No. 16), arguing that it is not subject to personal jurisdiction in Florida.¹ For the reasons that follow, the Court grants the motion (ECF No. 16).

2. Factual Background

Baron, a Florida resident, seeks $57,730,313.00 in damages based on seven causes of action in his amended complaint ("Complaint"): two counts for breach of contract; breach of fiduciary duty; loss of anticipated profits; fraud; tortious interference; and intentional infliction of emotional distress. (Am. Compl. ¶¶ 97, 101, 108, 114, 122, 129, 136, ECF No. 12.) Baron raises these claims against Acasta, a Canadian corporation with its principal place of business in Toronto, Canada, and several other Defendants. (Entwistle Aff. ¶ 3, Mot. Ex. A, ECF No. 16-1.) The Court previously dismissed the other Defendants, Acasta Cuba Capital, Mark Entwistle, Juanita Montalvo, Husain Chinikamwala, and Robert Muse. (ECF No. 25.) Mark Entwistle is the Managing Director of Acasta. (Entwistle Aff.¶ 1.)

On October 28, 2015, Baron and Acasta Cuba Capital ("Acasta CC"), an affiliate of Acasta, entered into a Memorandum of Understanding ("MOU") that focuses on business development opportunities in Cuba.² (Id. ¶¶ 9-10; MOU,

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Entwistle Aff. Ex. 1, ECF No. 16-1.) The MOU outlined the intentions of the parties regarding the formation of a middle-Caribbean region cruise line, named "Capri Cruises," that would offer an itinerary with various ports in Cuba, Jamaica, and the surrounding region. (Am. Compl. ¶¶ 25, 32.)

The MOU specifically stated that "the provisions described in Articles [B through G] reflect the non-binding proposals among the parties and the provisions described in Articles [H through J] below reflect the binding agreements and obligations among the parties." (MOU art. A, Entwistle Aff. Ex. 1, ECF No. 16-1.) Articles H through J respectively govern confidentiality, choice of law, and exclusive dealing. (Id.) The binding "Exclusive Dealing" provision notes that the MOU expires on March 31, 2016, five months after the effective date. (Id. art J.) The MOU further notes that with the exception of Articles H through J, "this MOU represents only the parties' current good faith intention to negotiate and enter into the Definitive Documents, and otherwise is not, and is not intended to be, a binding agreement between the parties, and neither party will have any liability to the other party if such party fails to execute Definitive Documents for any reason." (Id. art. K)

According to Acasta, eight months after the execution of the MOU, Acasta CC elected to terminate the MOU upon learning that Baron did not have governmental clearances required to conduct business in Cuba. (Entwistle Aff. ¶ 13.) In his Complaint, Baron alleges that Acasta CC's termination of the MOU constituted a breach of the terms of the MOU.³ Baron also alleges that partners of Acasta and Acasta CC, Entwistle and Montalvo, engaged Baron to "discuss the project, review the business planning documents, discuss partnership strategies and determine the next steps" and expend "professional hours and financial resources and engag[e] with service providers." (Am. Compl. ¶¶ 19-20.)

3. Legal Standard

Federal Rule of Civil Procedure 12(b)(2) governs motions to dismiss for lack of personal jurisdiction. "Whether the court has personal jurisdiction over a defendant is governed by a two-part analysis." Verizon Trademark Servs., LLC v. Producers, Inc., 810 F. Supp. 2d 1321, 1324 (M.D. Fla. 2011). First, the court must determine whether the applicable state long-arm statute is satisfied.

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Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir. 2000). Second, if the state long-arm statute is satisfied, the court must analyze "whether the exercise of jurisdiction over the defendant comports with the Constitution's requirements of due process and traditional notions of fair play and substantial justice." Verizon Trademark, 810 F. Supp. 2d at 1324; Sculptchair, Inc. v. Century Arts, 94 F.3d 623, 626 (11th Cir. 1996).

A plaintiff must allege sufficient material facts to support long-arm jurisdiction. Future Tech., 218 F.3d at 1249. The burden then "shifts to the defendant to make a prima facie showing of the inapplicability of the statute." Id. (quoting Prentice v. Prentice Colour, Inc., 779 F. Supp. 578, 583 (M.D. Fla. 1991)). The defendant must file, and the Court will consider, affidavits refuting the applicability of the long-arm statute. Chitoff v. CashCall, Inc., No. 0:14-CV-60292, 2014 WL 6603985, at *1 (S.D. Fla. Nov. 7, 2014) (Rosenberg, J.) ("A defendant wishing to contest the allegations of a complaint concerning jurisdiction . . . must file affidavits in support of his position." (quoting Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502-03 (Fla. 1989))). Once the defendant has successfully challenged the plaintiff's allegations through this showing, "[t]he burden is then placed upon the plaintiff to prove by affidavit the basis upon which jurisdiction may be contained." Id.; see also Future Tech., 218 F.3d at 1249 ("[T]he plaintiff is required to substantiate the jurisdictional allegations in the complaint by affidavits or other competent proof, and not merely reiterate the factual allegations in the complaint." (quoting Prentice, 779 F. Supp. at 583)).

A court must liberally construe complaints filed by pro se litigants, and "however inartfully pleaded, [those complaints] must be held to less stringent standards than formal pleadings drafted by lawyers."⁴ Stephens v. DeGiovanni, 852 F.3d 1298, 1319 (11th Cir. 2017) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). However, "the leniency afforded pro se litigants does not give courts license to serve as de facto counsel or to rewrite an otherwise deficient pleading in order to sustain an action." Shuler v. Ingram & Assocs., 441 F. App'x 712, 717 n.3 (11th Cir. 2011).

4. Analysis

A. Initial Considerations

A court has the discretion to dismiss a complaint for failure to comply with the pleading rules. Heard v. Nix, 170 F. App'x 618, 619-20 (11th Cir.

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2006). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include "a short and plain statement of the claim showing that the pleader is entitled to relief." Here, the Complaint fails to comply with Rule 8(a)(2) because it constitutes a classic shotgun pleading. A typical shotgun pleading contains several counts, each one incorporating by reference the allegations of its predecessor. Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 1321 (11th Cir. 2015) ("The most common type [of shotgun pleading]—by a long shot—is a complaint containing multiple counts where each count adopts the allegations of all preceding counts, causing each successive count to carry all that came before and the last count to be a combination of the entire complaint."). Such a complaint creates a situation where most of the counts contain irrelevant factual allegations and legal conclusions, leaving the court to sift through irrelevancies to determine the sufficiency of a claim. Strategic Income Fund, LLC v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir. 2002).

Here, the Complaint contains seven counts. Each count incorporates all of the previous allegations set forth in earlier paragraphs. (Am. Compl. ¶¶ 90, 99, 103, 110, 116, 124, 131.) As a result, this Court could dismiss the Complaint in its entirety as a shotgun pleading. However, because Baron has not and cannot allege sufficient facts to satisfy personal jurisdiction, this Court will address the merits of the Defendant's motion to dismiss.

B. Motion to Dismiss

Acasta challenges the Court's personal jurisdiction over it, arguing (1) Baron has not established facts that trigger Florida's long-arm statute; and (2) exercising jurisdiction over Acasta would not comport with the requirements of due process or traditional notions of fair play and substantial justice. (Mot. at 8-13.) Baron opposes Acasta's motion, arguing that personal jurisdiction over Acasta is proper because Acasta has satisfied Florida's long-arm statute by (1) committing tortious acts in Florida; and (2) conducting business in Florida. (Resp. at 5-7, ECF No. 21.)

The Court notes that Baron filed an unsigned memorandum of law in opposition to the Defendant's motion to dismiss (ECF No. 21) and an unsigned and unsworn affidavit in opposition to the motion to dismiss (ECF No. 22). Both the memorandum and the affidavit are inadmissible—the memorandum does not comply with Federal Rule of Civil Procedure 11(a), and the affidavit does not comply with 28 U.S.C. § 1746. Notwithstanding these issues, the Complaint does not sufficiently allege personal jurisdiction.

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In considering the first step of the inquiry, the Court must determine whether the Complaint alleges facts sufficient to establish that Acasta's activities meet one or more of the enumerated acts listed in Florida's long-arm statute, section 48.193(1), Florida Statutes (2015). Baron argues that Acasta's activities have triggered application of the following sections of Florida's long-arm statute:

2. Committing a tortious act within this state.

. . . .

6. Causing injury to persons or property within this state arising out of an act or omission by the defendant outside this state, if, at or about the time of the injury . . .:

a. The defendant was engaged in solicitation or service activities within this state . . . .

Fla. Stat. § 48.193(1)(a). (Resp. at 5.) Baron has failed to establish sufficient jurisdictional facts that would...