Don'T Look Media LLC v. Fly Victor Ltd., 20-10779

• Citation: 999 F.3d 1284
• Decision Date: 04 June 2021
• Docket Number: No. 20-10779,20-10779
• Parties: DON'T LOOK MEDIA LLC, a Delaware Limited Liability Company, Plaintiff - Appellant, v. FLY VICTOR LIMITED, a company incorporated under the Laws of England and Wales, Alyssum Group Limited, a company incorporated under the Laws of England and Wales, Alyssum Holdings Limited, a company incorporated under the Laws of England and Wales, Clive Henry Jackson, an individual, Bernardus Vorster, an individual, Dan Northover, an individual, John Doe(s), an unknown person(s)/corporation(s), Defendants - Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

999 F.3d 1284

DON'T LOOK MEDIA LLC, a Delaware Limited Liability Company, Plaintiff - Appellant,

v.FLY VICTOR LIMITED, a company incorporated under the Laws of England and Wales, Alyssum Group Limited, a company incorporated under the Laws of England and Wales, Alyssum Holdings Limited, a company incorporated under the Laws of England and Wales, Clive Henry Jackson, an individual, Bernardus Vorster, an individual, Dan Northover, an individual, John Doe(s), an unknown person(s)/corporation(s), Defendants - Appellees.

No. 20-10779

United States Court of Appeals, Eleventh Circuit.

June 4, 2021

Jay Lewis Farrow, AT, Meera K. Koodie, Farrow Law, PA, Davie, FL, for Plaintiff-Appellant.

Clayton Wickliffe Thornton, Clyde & Co US, LLP, Miami, FL, for Defendants-Appellees Fly Victor Limited, Alyssum Group Limited, Alyssum Holdings Limited, Clive Henry Jackson, Bernardus Vorster, Dan Northover.

Before JILL PRYOR, NEWSOM, and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:

This dispute concerns a deal gone bad. Plaintiff Don't Look Media, LLC ("DLM") licensed its private jet booking website to defendant Fly Victor Ltd. in exchange for Fly Victor's agreement to invest in increasing traffic to the site and to share booking revenues with DLM. According to DLM, Fly Victor didn't do any of that, and never intended to. DLM sued Fly Victor, some of its directors and officers, and related entities in the Southern District of Florida. Among other things, DLM alleged that the directors and officers had violated the Racketeer Influenced and Corrupt Organizations Act ("RICO") by defrauding DLM of the site revenues and laundering these ill-gotten gains through closely held firms. The district court dismissed the case for a lack of personal jurisdiction and because the revenue sharing agreement's forum selection clauses mandated litigation of the dispute in an English court.

We affirm for two independently sufficient reasons. First, for a statutory basis for personal jurisdiction, DLM relies only on a RICO provision that allows for service of process in any United States judicial district. But this statute cannot provide personal jurisdiction because DLM did not serve any party within the United States. It only attempted service on the defendants in a London office building. Moreover, the forum selection clauses are enforceable, plainly apply to DLM's claims, and require dismissal in favor of an English forum.

I.

A.

Broward County, Florida-based Don't Look Media, LLC owns PrivateJet.com, a website booking platform for private jet operators. Customers use the website to arrange and book flights with individual providers. As of July 2015, DLM was licensing the PrivateJet platform to Jetsmarter.com, a private jet services broker and a competitor of defendant Fly Victor Ltd. ("Fly Victor"). Fly Victor is a London, England-based private jet and air charter broker that develops websites and mobile applications to reach clients looking to charter private jets.

DLM grew dissatisfied with Jetsmarter and retained Nelson Rocha as a consultant to explore the possibility of partnering PrivateJet.com with an alternative company. Rocha reached out to Fly Victor with a proposal for Fly Victor to develop and manage the PrivateJet domain and to share the resulting revenues with DLM. In July 2015, DLM and Fly Victor executed a Revenue Sharing Agreement ("RSA"). The RSA assigned to Fly Victor "the exclusive license and rights to design, manage, build and operate PrivateJet" for three years. In exchange, Fly Victor agreed "to design and build PrivateJet by continuously adding content and search engine optimization on both a newly-developed landing page and website, which would include a state-of-the-art booking platform." Fly Victor promised it would perform according to "Good Industry Practice" and in compliance with Federal Aviation Administration and United States Department of Transportation regulations. Fly Victor also agreed to invest in PrivateJet's revenue generation potential: "it would spend at least [$2,500.00] per month on Google Pay-Per-Click advertising starting" in November 2015. Finally, Fly Victor agreed to share with DLM forty percent of the gross profits from initial bookings on PrivateJet and ten percent of the gross profits from all subsequent bookings. But if site revenues did not reach certain monthly minimum targets, Fly Victor would instead pay DLM $2,500 per month beginning in the sixth month of the contract. This figure increased to $5,000 per month beginning in the twenty-fifth month of the contract.

A seemingly straightforward business arrangement. But according to DLM, all was not as it appeared. DLM claims that some of the defendants -- Fly Victor CEO and Director Clive Henry Jackson, Fly Victor Accountant and Principal Director Bernardus Vorster, Fly Victor Chief Marketing Officer Dan Northover, and unknown John Doe insider investors in Fly Victor -- "collaborated prior to and during the drafting of the RSA for purposes of defrauding [DLM] as these [d]efendants had no intention of Fly Victor honoring any of its obligations under the RSA." The RSA was a "fraudulent inducement for [DLM] to license PrivateJet to ... Fly Victor."

This scheme included the addition of allegedly unnegotiated venue and choice of law clauses intended to "make it difficult or impossible for [DLM] to enforce its rights once the fraud was discovered." These clauses read:

13. CHOICE OF LAW

13.1 This Agreement, and any issues or disputes arising out of or in connection with it (whether such disputes are contractual or non-contractual in nature, such as claims in tort, for breach of statute or regulation or otherwise) shall be governed by and construed in accordance with English law and the parties hereby submit to the exclusive jurisdiction of the English Courts.

...

22. LAW AND JURISDICTION

...

22.2 The courts of England shall have exclusive jurisdiction to adjudicate any dispute which arises out of or in connection with this Participation Agreement, provided that Victor shall be entitled to take proceedings relating to this Participation Agreement in any other jurisdiction.¹

In December 2017, defendants Alyssum Group and Alyssum Holdings were formed as Fly Victor's parent corporations, allegedly in order to defraud DLM and others by hiding Fly Victor's revenues.

Early on, the contractual relationship seemed to be going well. In September 2015, Jackson emailed DLM's sole member Louis Spagnuolo that he believed the project was "all in hand" and indicated that Northover was responsible for the PrivateJet project. In November, a DLM representative emailed Northover "to see how things were progressing." Northover responded that his team had "started organically rebuilding traffic to the site," and provided some detail on site visit numbers and the sources of the visits. He was optimistic about increasing traffic: "There are some big gains to be made in organic traffic and once the latest product iterations are in place, we should start work on improving our [search engine optimization] and introducing paid search campaigns." Though traffic was "small numbers right now," Northover was "confident [it would] build up over the coming weeks."

According to DLM, this update was misleading. Northover had no reason to believe "big gains" were on the way because Fly Victor was not investing in generating site traffic -- contrary to its contractual promise. Spagnuolo sent other emails from July 2015 to August 2018 inquiring about the status of payments Fly Victor owed DLM, but "never seemed to get a straight answer." On July 25, 2018, Spagnuolo called Northover and told him that DLM "had not been paid for any lead generations for three years" and that he believed "Fly Victor was in material breach of the RSA." In response, Northover stated that "he had not been able to get management's full backing for the project."

The RSA's thirty-six-month term expired on July 4, 2018, and Fly Victor notified DLM that it was not interested in renewing the agreement. DLM alleges that on August 21, 2018, Alyssum Group's "lawyer Stephen Jones wrote DLM an email on behalf of ... Fly Victor which stated -- falsely -- that DLM allegedly failed to complain about not getting paid during the term of the RSA" and that DLM's "claims for breach of contract were [therefore] non-existent."

DLM claims that even though PrivateJet "created multi-million-dollar revenues" for Fly Victor, DLM "has not received one dollar in remunerations from these revenues as required by the RSA." However, Fly Victor did make at least some payments to DLM. Spagnuolo -- DLM's sole member -- said in an affidavit that from 2016 through 2018, "DLM received wire transfers from [Fly Victor's] U.S. Bank account, American Riviera Bank for base payments under the RSA." And Fly Victor's Jackson offered an affidavit and invoices explaining that the PrivateJet site revenues never reached the minimum target volumes, so the RSA required Fly Victor to pay only the minimum monthly payments, which it did.

B.

DLM filed suit in the Southern District of Florida against Jackson, Vorster, Northover, the John Does, Fly Victor, Alyssum Group, and Alyssum Holdings. Fly Victor's Miami-based legal counsel informed DLM that it was not authorized to accept service on behalf of any defendant, so DLM hired a process service firm to serve the defendants in England. The firm served Fly Victor, Alyssum Group, and Alyssum Holdings at Fly Victor's London office. The server was unable to locate Northover, Jackson, or Vorster, so it left their documents together with the service documents for the company defendants at the Fly Victor reception desk. About a month later, Fly Victor's counsel informed DLM's attorney that he could "cancel any further efforts [of the] process server, as we will not be contesting service of process in our motions." At this point, the operative complaint did not rely on RICO's nationwide service of process provision to plead personal jurisdiction;...