Fertilizantes Tocantins S.A. v. TGO Agric. (USA), Inc.

• Decision Date: 14 April 2022
• Docket Number: Case No. 8:21-cv-2884-VMC-JSS
• Citation: 599 F.Supp.3d 1193
• Parties: FERTILIZANTES TOCANTINS S.A., Plaintiff, v. TGO AGRICULTURE (USA), INC., Defendant.
• Court: U.S. District Court — Middle District of Florida

599 F.Supp.3d 1193

FERTILIZANTES TOCANTINS S.A., Plaintiff,

v.TGO AGRICULTURE (USA), INC., Defendant.

Case No. 8:21-cv-2884-VMC-JSS

United States District Court, M.D. Florida, Tampa Division.

Signed April 14, 2022

Jason H. Baruch, Paul Joseph Punzone, Holland & Knight LLP, Tampa, FL, Christopher R. Nolan, Pro Hac Vice, Holland & Knight, New York, NY, for Plaintiff.

Steven Joseph Brotman, Locke Lord, LLP, West Palm Beach, FL, Matthew T. Furton, Locke Lord LLP, Chicago, IL, for Defendant.

ORDER

VIRGINIA M. HERNANDEZ COVINGTON, UNITED STATES DISTRICT JUDGE

This matter is before the Court on consideration of Defendant TGO Agriculture (USA), Inc.’s Motion to Dismiss (Doc. # 27), filed on January 19, 2022. Plaintiff Fertilizantes Tocantins S.A. ("FTO") filed a response in opposition on February 9, 2022. (Doc. # 40). For the reasons set forth below, the Motion is denied.

I. Background

According to the complaint, Plaintiff FTO is a "top-five fertilizer supplier in Brazil" and provides fertilizer to commercial farmers throughout Brazil. (Doc. # 1 at ¶¶ 1, 11). Defendant TGO is an international exporter and importer of fertilizers, agricultural products, and related chemical products. (Id. at ¶ 2). According to FTO, TGO failed to deliver 45,000 metric tons of fertilizer "after the parties agreed to the order and shipment as confirmed in multiple writings among the parties." (Id. at ¶ 3).

Specifically, FTO alleges that in September 2020, FTO and TGO engaged in "extensive negotiations" for FTO's purchase of a large volume of fertilizer. (Id. at ¶ 12). On September 11, 2020, "FTO sent a confirmation to representatives of TGO via email with the subject ‘Purchase Confirmation.’ " (Id. at ¶ 15). The September 11, 2020, email contained, among other things, the following terms and conditions: (1) the type of product; (2) a quantity of "20,000 MT +/- 10% sellers option"; (3) a price of $145 US dollars per metric ton; and (4) estimated delivery dates. (Id. at ¶¶ 13, 16).

According to the complaint, "[a]fter the initial confirmation of 20,000 MT, on September 30, 2020, FTO further confirmed a second and third order for 10,000 MT and 15,000 MT." (Id. at ¶ 17). The three orders, combined, brought the aggregate order amount to 45,000 MT at a price of $145 USD/MT. (Id. at ¶ 18). According to FTO, those second and third orders were placed via WhatsApp messages sent on September 30, 2020, between FTO's representatives and TGO's representatives. (Id. at ¶¶ 19-21).

On April 29, 2021, a person affiliated with FTO emailed TGO representatives to address shipment instructions related to the 45,000 MT purchase at issue. (Id. at ¶ 25). The next day, FTO sent TGO an email with the subject line, "SHIPMENT INSTRUCTIONS." (Id. at ¶ 26). That April 30 email "further inquired about exchanging a contract form to finalize the deal: ‘Do we already have a contract for this deal?’ " (Id. at ¶ 27). A TGO representative replied, confirming receipt of the shipment instructions and stating that TGO would "return with the contract once available." (Id. at ¶ 28). FTO alleges that TGO never forwarded a formal contract and never made any shipment to FTO. (Id. at ¶ 29).

As FTO characterizes it, the writings on September 11 and 30, 2020, "confirmed an agreement for FTO to purchase an aggregate amount of 45,000 MT of the specified fertilizer from TGO at the specified price of $145 USD/MT" and that the parties’ negotiations, the manner of entering into the agreement, and the shipment confirmation process are all "standard protocol in FTO's business." (Id. at ¶¶ 22, 23).

Based on these allegations, FTO brings the following causes of action: (1) breach of express contract, (2) declaratory relief, and (3) in the alternative, breach of an implied contract. See (Id. ). On January 19, 2022, TGO filed a motion to dismiss the complaint, to which FTO has responded. (Doc. ## 27, 40). The Motion is now ripe for review.

II. Legal Standard

On a motion to dismiss pursuant to Rule 12(b)(6), this Court accepts as true all the allegations in the complaint and construes them in the light most favorable to the plaintiff. Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further, the Court favors the plaintiff with all reasonable inferences from the allegations in the complaint. Stephens v. Dep't of Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990). But,

[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations omitted). Courts are not "bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). The Court must limit its consideration to well-pleaded factual allegations, documents central to or referenced in the complaint, and matters judicially noticed. La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004).

III. Analysis

TGO challenges both venue in this District under Fed. R. Civ. P. 12(b)(3) and the merits of the complaint under Fed. R. Civ. P. 12(b)(6). The Court will address the venue argument first.

A. Venue

Federal Rule of Civil Procedure 12(b)(3) states that a party may move to dismiss a case for "improper venue." Rule 12(b)(3) authorizes dismissal "only when venue is ‘wrong’ or ‘improper’ in the forum in which it was brought." Atl. Marine Const. Co. v. U.S. Dist. Court for W. Dist. of Texas, 571 U.S. 49, 55, 134 S.Ct. 568, 187 L.Ed.2d 487 (2013). The question of whether venue is "wrong" or "improper" "is generally governed by 28 U.S.C. § 1391." Id. That provision provides that a civil action may be brought in:

(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;

(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or

(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.

28 U.S.C. § 1391(b). For venue purposes, defendant corporations "reside" "in any judicial district in which such [corporation] is subject to the court's personal jurisdiction with respect to the civil action in question." Id. § 1391(c)(2). And, in a multi-district state like Florida, the personal jurisdiction analysis is limited to contacts specifically in the Middle District of Florida "as though this district were a separate state," rather than the State of Florida at large. Id. § 1391(d). The Court therefore starts by analyzing whether TGO is subject to this Court's personal jurisdiction with respect to the claims here — even though TGO did not move to dismiss under Federal Rule of Civil Procedure 12(b)(2). See Robey v. JPMorgan Chase Bank, N.A., 343 F. Supp. 3d 1304, 1317–18 (S.D. Fla. 2018) (explaining procedure for establishing venue when challenged by defendant corporation).

The plaintiff bears the burden of showing that venue is proper. See Wai v. Rainbow Holdings, 315 F. Supp. 2d 1261, 1268 (S.D. Fla. 2004) (citing cases). In assessing whether venue is proper, the court must accept all well-founded allegations in the complaint as true, unless contradicted by affidavits from the defendant. Id. The Court must draw all reasonable inferences and resolve all factual conflicts in favor of the plaintiff. Id.

Here, the complaint alleges that TGO "resides in this district and a substantial part of the events or omissions giving rise to FTO's claims occurred here." (Doc. # 1 at ¶ 10). The complaint further alleges that TGO is incorporated in Delaware and has "a primary office" in Tampa, Florida. (Id. at ¶ 8). TGO did not submit any affidavits. Thus, the Court must accept the facts alleged in the complaint as true.

Personal jurisdiction comes in two forms – general and specific. Corporations that incorporate in a particular state or have their principal place of business there have agreed to be subject to the general jurisdiction of the courts of that state. Kinsman v. Fla. State Univ. Bd. of Trustees, No. 6:15-cv-16-GAP-KRS, 2015 WL 11110542, at *2 (M.D. Fla. Apr. 27, 2015). Here, FTO alleges that TGO is incorporated in Delaware and alleges only that it has "a primary office" in Florida. FTO does not allege that TGO's principal place of business is in Florida, and "[a] corporation can have only one principal place of business." El Chico Restaurants, Inc. v. Aetna Cas. & Sur. Co., 980 F. Supp. 1474, 1481 (S.D. Ga. 1997) (citing J.A. Olson Co. v. City of Winona, 818 F.2d 401, 406 (5th Cir. 1987) ). Thus, the Court does not have general jurisdiction over TGO.¹

Turning then, to specific jurisdiction, which arises out of or relates to the defendant's contact with the forum. See Int'l Shoe Co. v. Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 319, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Courts use a two-part test to decide if there is personal jurisdiction over a nonresident defendant. Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990). "First, we consider the jurisdictional question under the state long-arm statute." Id. "If there is a basis for the assertion of personal jurisdiction under the state statute, we next determine whether sufficient minimum contacts exist to satisfy the Due Process Clause of the Fourteenth Amendment so that ‘maintenance of the suit does not offend traditional notions of fair play and substantial justice.’ " Id. (quotin...