Crowe v. Paragon Relocation Resources, Inc.

• Decision Date: 16 August 2007
• Docket Number: No. 3:06cv407/MCR/MD.,3:06cv407/MCR/MD.
• Parties: Carmen CROWE, Plaintiff, v. PARAGON RELOCATION RESOURCES, INC., Defendant.
• Court: U.S. District Court — Northern District of Florida

Page 1113

506 F.Supp.2d 1113

Carmen CROWE, Plaintiff, v. PARAGON RELOCATION RESOURCES, INC., Defendant.

No. 3:06cv407/MCR/MD.

United States District Court, N.D. Florida, Pensacola Division.

August 16, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Bradley Syfrett Odom, Kievit Odom & Barlow, Pensacola, FL, for Plaintiff.

Laura E. Prather, Trenam Kemker Scharf etc., Tampa, FL, for Defendant.

ORDER

RODGERS, District Judge.

This is an employment discrimination case which arose as a result of Defendant, Paragon Relocation Resources, Inc.'s ("Paragon") decision not to hire the Plaintiff, Carmen Crowe for a sales position with the company. Plaintiff alleges that Paragon's decision was motivated by his age and thus in violation of both the Age Discrimination in Employment Act, 26 U.S.C. § 621, et seq., and the Florida Civil Rights Act of 1992. Defendant has filed a motion to dismiss plaintiffs complaint on the basis' of lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2). The court held an evidentiary hearing on May 11, 2007, to resolve issues of disputed fact raised by the parties' affidavits. After considering the arguments of counsel, the evidence presented at hearing, and the relevant case law, the court concludes it does not have personal jurisdiction over the defendant and the case should be transferred to the United States District Court for the Central District of California.

Background

Paragon is a `Delaware corporation with its primary place of business in California.¹ Paragon is a full service relocation management company providing relocation services in more than 140 countries and all fifty states, including Florida.² Paragon, however, is not registered or licensed to do business in Florida; does not maintain an office in Florida; and has no property, telephone numbers, or bank accounts in Florida. It also does not have any subsidiaries, agents, or employees in the state.

At the time of the events in this case, the president and CEO of Paragon was Joe Morabito. Craig Selders Served as Paragon's International Vice President. The remainder of Paragon's employees in the United States worked in either sales or operations. Sales employees marketed the company's services, while operations employees managed relocations for specific clients. Three regional vice presidents managed Paragon's sales force, including Chris Furlotte, regional vice president for the West Coast and Gulf Coast states, and Brian Schaffer, regional vice president for the Eastern seaboard and several inland states.³ Chris Furlotte's sales force included Jay Acker, who operated from Paragon's Texas office and was responsible for marketing in seven states around. the Gulf Coast, including Florida.⁴

Prior to 2004, Paragon's marketing efforts were directed at companies seeking to relocate their employees.⁵ In 2004, however, Paragon took steps to expand its business into affinity services, under which Paragon would contract with a membership or non-profit organization to allow Paragon to market its relocation services to the organization's members⁶ As part of its planned expansion into the affinity area, Paragon sought to hire an Affinity Manager of Business Development. This employee would have been located in the Washington, D.C., area⁷ and would have solicited organizations there, in New York City, and throughout the northeast.⁸

In October 2004, as part of several emails between Schaffer, Acker, Furlotte, Selders, and Morabito discussing the open position, Schaffer indicated that there was currently an applicant in the "interview funnel."⁹ Def.'s Ex. 1 at 3. Morabito instructed Schaffer to "pass [the applicant] around for second interviews." Id. Schaffer responded by sending Morabito and Selders Crowe's resume, which identified Florida as Crowe's home. Morabito responded by advising Schaffer that "Florida does not do us much good." Id. Schaffer replied indicating that Crowe was willing to relocate and asked if Paragon wanted Crowe to relocate to Washington, D.C.¹⁰ Morabito responded that "[Crowe] looks to be 50 years old and he appears to be going backwards in his career. That is not a good sign." Id. at 2. Schaffer understood this comment to mean that Morabito thought Crowe was too old for the position. Soon thereafter, Schaffer repeated Morabito's comment in an email to Selders and further stated "so I read that in Joe's corporate speak as too old and a `No.' Your take?" Id. at 1. Selders responded "I think you've read it right and time to move on." Id. Schaffer felt this email confirmed his suspicion that Crowe was not hired because of his age.

Paragon took no further action to consider Crowe for the position. Paragon eventually offered the position to an individual who resided in the Washington, D.C., area., who declined the offer. Paragon later determined it did not require an Affinity Manager of Business Development and thus delegated the duties of the position to one of Paragon's existing sales managers. Paragon discontinued its affinity services in 2006.

Legal Standards

Courts in the Eleventh Circuit follow a two-step analysis when deciding whether personal jurisdiction exists over a nonresident defendant. Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 626 (11th Cir.1996). First, the court must determine whether the state's long-arm statute (in this case Florida) provides a basis for personal jurisdiction over the defendant. Id. Second, if the state's longarm statute provides a basis for personal jurisdiction, the court must then determine whether "minimum contacts" exist to satisfy the Due Process Clause of the Fourteenth Amendment such that "maintenance of the suit does not offend traditional notions of fair play and substantial justice" as set forth in International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Id. (citations omitted). The minimum contacts requirement is satisfied if the defendant "purposefully directs activities at Florida and litigation arises out of those activities, or the defendant purposefully avails himself of the privilege of conducting activities within the forum state." Achievers Unlimited, Inc. v. Nutri Herb, Inc., 710 So.2d 716, 719 (Fla. 4th DCA 1998); see also Burger King v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). Only if the court determines there is a basis for personal jurisdiction under the state long-arm statute does it conduct the due process analysis. Nida Corp. v. Nida, 118 F.Supp.2d 1223, 1228 (M.D.Fla. 2000).

A plaintiff seeking to have the court exercise personal jurisdiction over a non-resident in Florida bears the burden of pleading facts sufficient to satisfy Florida's long-arm statute. Instrumentation, Ltda. v. Philips Electronics North America Corp., 951 So.2d 1001, 1002 (Fla. 3d DCA 2007) (citing Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989)). These allegations must be sufficient to defeat a motion for a directed verdict. Lauzon v. Joseph Ribkoff, Inc., 77 F.Supp.2d 1250, 1252 (S.D.Fla.1999) (quoting Francosteel Corp. v. M/V Charm, 19 F.3d 624, 626 (11th Cir.1994); Cable/Home Communication Corp. v. Network Prods., Inc., 902 F.2d 829, 855 (11th Cir.1990)), Once the plaintiff pleads sufficient material facts to support the court's exercise of personal jurisdiction, the burden shifts to the defendant to challenge plaintiff's allegations by affidavits or other competent evidence. Id. at 1253 (citing Prentice v. Prentice Colour, Inc., 779 F.Supp. 578, 585-586 (M.D.Fla.1991)). If the defendant's sworn proof raises an issue regarding the jurisdictional facts, the burden shifts back to the plaintiff to refute the defendant's evidence by its own affidavits or other sworn proof. Instrumentation, 951 So.2d at 1002 (citing Venetian, 554 So.2d at 502). Plaintiff will not satisfy its burden by simply reiterating the factual allegations in the complaint. Lauzon, 77 F.Supp.2d at 1253 (citing Prentice, 779 F.Supp. at 586; Murphy v. Republic Health Corp., 645 F.Supp. 124 (S.D.Fla.1986)). The court may make its decision on the basis of the parties' asserted evidence so long as the affidavits can be harmonized. Instrumentacion, 951 So.2d at 1002. If the affidavits conflict, however, the court must conduct an evidentiary hearing in order to resolve the issues of disputed fact. Id. (citing Venetian, 554 So.2d at 503). With respect to those points of the competing affidavits that do not conflict, however, "the court may accept as true the applicable allegations in the complaint for the purposes of resolving jurisdictional issues ...." Nida Corp., 118' F.Supp.2d at 1227 (citing Posner v. Essex Ins. Co., 178 F.3d 1209, 1215 (11th Cir.1999)). The plaintiff bears the burden of proof at any evidentiary hearing. Id. (citing. Musiker v. Projectavision, Inc., 960 F.Supp. 292, 295 (S.D.Fla.1997)).

Florida's long-arm statute is to be strictly construed. Sculptchair, 94 F.3d at 627 (citing Oriental Imports & Exports, Inc. v. Maduro & Curiel's Bank, N.V., 701 F.2d 889, 891 (11th Cir.1983)). Additionally, because the extent of the long-arm statute is governed by Florida law, any construction of the statute by a federal court must rely on prior decisions of the Florida Supreme Court construing the statute. Id. (citations omitted). In the event the Florida Supreme Court has not addressed a particular construction of the statute, a federal court is bound by the decisions of the state's intermediate appellate courts, absent some indication the Florida Supreme Court would decide otherwise. Id. (citations omitted).

Florida's long-arm statute provides for two distinct categories of personal jurisdiction: specific jurisdiction conferred under § 48.193(1) and general jurisdiction conferred under § 48.193(2). Miller v. Berman, 289 F.Supp.2d 1327, 1331 (M.D.Fla.2003) (citing Northwestern Aircraft Capital Corp. v....