Kim v. Keenan
| Decision Date | 03 November 1999 |
| Docket Number | No. 99-1416-CIV-T-17F.,99-1416-CIV-T-17F. |
| Citation | 71 F.Supp.2d 1228 |
| Parties | Jeong Min KIM and Unkyoung Kim, Plaintiffs, v. Don C. KEENAN, Charles H. Allen, Karen D. Farley, and Charles H. Allen, P.C. d/b/a Keenan Firm and/or Keenan Law Firm, and, D.C. Keenan & Associates, P.C. d/b/a/ Keenan Firm and/or Keenan Law Firm, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Hugh Nilsen Smith, Jeremy E. Slusher, Smith & Fuller, P.A., Tampa, FL, for Jeong Min Kim, Unkyoung Kim, plaintiffs.
Frank H. Gassler, Gayle Wrede Kirkpatrick, Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, FL, for Don C. Keenan, Charles H. Allen, Karen D. Farley, Charles H. Allen, PC dba Keenan Firm dba Keenan Law Firm, D.C. Keenan & Associates, P.C. dba Keenan Firm dba Keenan Law Firm, defendants.
ORDER ON MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION, OR, IN THE ALTERNATIVE, MOTION TO STRIKE
This cause is before the Court on Defendants' Motion to Dismiss Plaintiffs' Complaint for Lack of Personal Jurisdiction, or, in the Alternative, Motion to Strike (Dkt.3, 8). Defendants filed supporting affidavits subsequent to their original motion (Dkts.9-11). Plaintiffs have filed a Memorandum of Law in Opposition to Defendants' Motion to Dismiss or Strike (Dkts.12-16). Plaintiffs have also filed supplemental information regarding their Memoranda of Law (Dkt.17).
The Defendants' filing consists of three motions: (1) Motion to Dismiss for Lack of Personal Jurisdiction; (2) Motion to Dismiss for Failure to State a Cause of Action; and (3) Motion to Strike. Each motion requires the application of a specialized standard of review to the facts. The applicable standards are set forth below.
In a motion to dismiss for lack of personal jurisdiction, a court must accept the facts alleged in plaintiff's complaint as true, to the extent that they are not contradicted by defendant's affidavits. See Cable/Home Communication Corp. v. Network Productions, Inc., 902 F.2d 829, 855 (11th Cir.1990). Where there is conflicting evidence, the court must construe all reasonable inferences in favor of the plaintiff. See id. Once plaintiff pleads sufficient material facts to form a basis for personal jurisdiction, the burden shifts to defendants to challenge plaintiff's allegations by affidavits or other pleadings. See Prentice v. Prentice Colour, Inc., 779 F.Supp. 578, 586 (M.D.Fla.1991). If defendants sufficiently challenge plaintiff's assertions, then plaintiff must affirmatively support his or her jurisdictional allegations, and may not merely rely upon the factual allegations set forth in the complaint. See id. at 586.
A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the plaintiff's complaint to determine whether it sets forth sufficient allegations to establish a claim for relief. Under Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), a district court should not dismiss a complaint for failure to state a claim solely on the pleadings "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which could entitle him to relief." Additionally, when deciding a motion to dismiss, a court must accept the truthfulness of well-pleaded facts and resolve them in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); see also Beck v. Deloitte et al., 144 F.3d 732, 735-36 (11th Cir.1998)(quoting St. Joseph's Hosp. Inc. v. Hospital Corp. of America, et al., 795 F.2d 948 (11th Cir.1986)).
Rule 12(f) of the Federal Rules of Civil Procedure states that "a Court may order stricken from any pleading any redundant, immaterial, impertinent, or scandalous matter." Additionally, a motion to strike will "usually be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties." See Seibel v. Society Lease, Inc., 969 F.Supp. 713, 715 (M.D.Fla.1997).
The following allegations, taken from the Complaint and its attached exhibits, are considered true for the present purpose of deciding whether to dismiss Plaintiffs' Complaint. See Beck, 144 F.3d at 735.
On May 27, 1996, Plaintiffs Jeong Min Kim and Unkyoung Kim (James and Jessica Kim) were involved in an accident on I-75, near Valdosta, Georgia. While traveling southbound on I-75, a vehicle driven by a third party crossed the median and struck the van that Plaintiffs were driving. The impact caused Plaintiffs' vehicle to run off the road and roll over, thereby seriously injuring James Kim.
In their subsequent lawsuit, Plaintiffs alleged that the seriousness of the accident was a result of the Georgia Department of Transportation's (Georgia DOT) failure to place a guardrail where Plaintiffs' vehicle exited the roadway. To pursue this lawsuit, Plaintiffs consulted Florida attorney Patrick Dekle who in turn informed Georgia Attorney Defendants Don Keenan, Charles Allen, Karen Farley, and Charles Allen of Plaintiffs' possible cause of action. Upon accepting representation of Plaintiffs, Defendants contracted with Dekle under Florida law to provide co-counsel in Florida. On approximately December 31, 1996, Defendants filed suit on behalf of James Kim against the Georgia DOT. However, under the Georgia Tort Claims Act, notice of a claim must be given in writing within twelve months from the discovery of the loss. On January 15, 1997, the Georgia DOT raised "failure to serve the requisite notice as required by the Act" in its "Special Appearance Answer." (Compl.¶ 25.) Defendants never filed suit on behalf of Plaintiff Jessica Kim.
On February 13, 1997, Don Keenan, Charles Allen, and Karen Farley met to discuss responding to the Georgia DOT's "Special Appearance Answer." During this meeting it was determined that no answer was required. The Georgia DOT filed a Motion to Dismiss and, on January 16, 1998, Plaintiffs' Complaint was dismissed. As the time period for compliance with the Act had already expired, the Complaint was effectively dismissed with prejudice.
Plaintiffs allege that "[h]ad the Defendants complied with the Act and otherwise filed an appropriate complaint on behalf of James and Jessica Kim, the underlying cause of action would not have been dismissed with prejudice and James and Jessica Kim would have recovered a substantial judgement against the Georgia DOT." (Compl. ¶ 30.) Moreover, the actions of the Defendants "amounted to willful and/or wanton misconduct" and "constitute gross negligence." (Compl.¶ 31.) In sum, Plaintiffs assert that Defendants committed both professional negligence and breach of contract in their obligations to Plaintiffs.
In their Motion to Dismiss, Defendants first allege that this Court does not have personal jurisdiction over Defendants. Second, Defendants move to dismiss Plaintiffs' Complaint on the grounds that it does not state a cause of action upon which relief can be granted. Third, Defendants move to strike various portions of Plaintiffs' Complaint under Fed.R.Civ.P. 12(f). The Court will address each of these issues in the order in which they are presented.
Defendants' first contention is that this Court does not have personal jurisdiction over Defendants. Defendants state that personal jurisdiction does not exist under either Florida's long-arm statute or the Due Process Clause of the Fourteenth Amendment. By providing a meritorious challenge to jurisdiction by their Motion and affidavits, Defendants attempt to shift the burden of proving personal jurisdiction to Plaintiffs. See Black v. Bryant, 905 F.Supp. 1046, 1051 (M.D.Fla.1995). In response, Plaintiffs assert that personal jurisdiction is proper with this Court.
In order to establish personal jurisdiction with this Court, Plaintiffs' Complaint must pass the two-pronged test used in the Eleven Circuit. See Scott v. Plaques Unlimited, Inc., 46 F.Supp.2d 1287, 1291-92 (M.D.Fla.1999)(citing Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623 (11th Cir.1996)). First, Florida's long-arm statute must provide a basis for personal jurisdiction. See id. If this requirement is met, the second prong necessitates sufficient minimum contacts between Defendants and the forum state so as to satisfy "traditional notions of fair play and substantial justice" under the Due Process Clause of the Fourteenth Amendment. See id.; see also Madara v. Hall, 916 F.2d 1510, 1515-16 (11th Cir.1990)(quoting International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945)).
In their Motion, Defendants maintain that the exclusivity of their actions in Georgia prohibits the Court from finding personal jurisdiction under the Florida long-arm statute. Plaintiffs respond that Defendants have established sufficient contacts with Florida to comport with the Eleventh Circuit's interpretation of sections 48.1939(1)(a), (b), and (f)(1). See Fla. Stat. Ann. § 48.193 (West 1999).
Florida's long-arm statute is set forth under Fla. Stat. Ann. § 48.193 (West 1999). It reads, in part:
(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself ... to the jurisdiction of the courts of this State for any cause of action arising from the doing of any of the following acts:
(a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state
(b) Committing a tortious act within this state...
...
... (f) 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, either:
1. The defendant was engaged in solicitation or service activities within this state.
Id....
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