[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Nos. 06-15561 & 06-15562 FEBRUARY 5, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 05-80980-CV-KLR
UNITED TECHNOLOGIES CORPORATION,
Plaintiff-Appellant,
versus
RUSSELL MAZER,
Defendant,
AIRCRAFT POWER MAINTENANCE,
WEST-HEM AIRCRAFT SUPPLIES, INC.,
Defendants-Appellees.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(February 5, 2009)
Before TJOFLAT, MARCUS, and WILSON, Circuit Judges.
TJOFLAT, Circuit Judge:
This case stems from the theft and sale of blueprints relating to an aircraft
engine manufactured by the Pratt & Whitney division (“Pratt”) of United
Technologies Corporation (“UTC”). UTC claimed that West-Hem Aircraft
Supplies, Inc. (“West-Hem”) and Aircraft Power Maintenance (“APM”) are
legally responsible for the theft and sale, and it sued them in the United States
District Court for the Southern District of Florida. The district court, in separate
orders, granted West-Hem’s motion to dismiss UTC’s complaint for failure to state
a claim for relief1 and APM’s motion to dismiss for lack of personal jurisdiction,2
and it entered final judgments pursuant to those orders under Rule 54(b) of the
Federal Rules of Civil Procedure. UTC now appeals. We reverse the judgment
for West-Hem, concluding that the complaint states a claim for relief. We affirm
the judgment for APM, however, because the district court correctly found that the
record provided an insufficient basis for exercising personal jurisdiction over
APM.
1
See Fed. R. Civ. P. 12(b)(6).
2
See Fed. R. Civ. P. 12(b)(2).
2
I.
A.3
Pratt is a wholly-owned division of UTC, a Delaware corporation
headquartered in Hartford, Connecticut, and is engaged in the business of
manufacturing, repairing, maintaining, and providing related support and services
for turbine engines. West-Hem is a Florida corporation, located in Riviera Beach,
Florida, in the business of buying and selling aircraft parts and related support
materials. APM is a Belgian company, located in Wevelgem, Belgium, engaged in
the business of repairing and maintaining aircraft engines. Russell Mazer, a co-
defendant in this case, is president and part owner of West-Hem and a director and
40% owner of APM. West-Hem had long been a customer of Pratt, and APM had
been a customer of both Pratt and West-Hem for years.
As part of its business, APM repaired and maintained Pratt engines,
including engine model PWAJT8D (“JT8D”). In order to work on a JT8D, as with
any Pratt engine, APM would need to purchase from Pratt either specially-made
3
The facts stated in subpart I.A are those alleged in UTC’s complaint, as amended
(referred to in this opinion as the “complaint”), which we have read in the light most favorable to
UTC, and accepted as true. Bridge v. Phoenix Bond & Indem. Co., -- U.S. --, 128 S. Ct. 2131,
2135 n.1, 170 L. Ed. 2d 1012 (2008) (citation omitted). We read the complaint in this way to
determine whether, contrary to the district court’s ruling, UTC has stated a claim for relief. In
determining whether the district court correctly found an insufficient basis for exercising
personal jurisdiction over APM, we consider the allegations of the complaint and the affidavit
APM presented in support of its motion to dismiss.
3
precision tools or blueprints and licenses required to make such precision tooling
for itself. For this reason, APM had an interest in acquiring a set of Pratt’s
blueprints for the JT8D tooling, and West-Hem wanted to fulfill that need by
acquiring a set of the blueprints to sell to APM. To this end, West-Hem’s Mazer
had tried to locate and purchase a set of the blueprints from numerous sources,
who quoted prices as high as $100,000. The reasonable commercial value of the
blueprints, which Pratt deemed to be protected and proprietary, was approximately
$250,000.
In November 2003, Mazer met with Pratt employees in Connecticut about
West-Hem business unrelated to this case. Among the Pratt personnel with whom
Mazer met while in Connecticut was Anthony DiLorenzo, a temporary contract
worker. Mazer mentioned to DiLorenzo that he was interested in acquiring a set
of the JT8D tooling blueprints. Although DiLorenzo’s employment contract with
Pratt prohibited him from accessing Pratt’s proprietary or other protected
information without authorization from a responsible authority, he apparently
suggested to Mazer that he could provide the blueprints.4
4
Although the complaint does not explicitly allege that DiLorenzo told Mazer that he
would have to steal the blueprints to do so or that Mazer asked DiLorenzo to steal them, we infer
from what is alleged that Mazer knew that any blueprints he obtained from DiLorenzo would be
stolen.
4
Between January and March 2004, APM’s managing director, Wilhelm
Loetschert, was visiting Florida from Belgium and staying at Mazer’s home in
order to attend helicopter pilot training. At some point during this period, Mazer
and Loetschert discussed West-Hem’s potential acquisition of the Pratt blueprints
from DiLorenzo, including the price that West-Hem would pay for the blueprints.5
At some point in February or March 2004, DiLorenzo either accessed or
caused someone else to access a protected Pratt computer and, without
authorization, obtained a printed copy of the JT8D tooling blueprints. Thereafter,
in March or April 2004, West-Hem and Mazer purchased the blueprints from
DiLorenzo for approximately $5,000.6 Mazer provided DiLorenzo with West-
Hem’s Federal Express account information to use in sending the blueprints to
West-Hem in Florida, received the blueprints at West-Hem’s office, and
instructed West-Hem employees to send DiLorenzo payment for the blueprints
using West-Hem’s Federal Express account. APM’s Loetschert provided a portion
5
The complaint does not allege, however, exactly when Mazer and Loetschert agreed
upon a price or when, if ever, Loetschert learned that the sale would be illicit.
6
The complaint does not allege exactly when Mazer and DiLorenzo (1) agreed that
DiLorenzo would steal the blueprints (if they ever made such an express agreement); (2)
confirmed that Mazer and/or West-Hem would purchase them; or (3) settled on the price
DiLorenzo would receive. The complaint does allege, however, that Loetschert objected to
DiLorenzo’s initial asking price as too high and later decided with Mazer on the amount that
West-Hem would pay.
5
of the cash used to purchase the blueprints while he was staying in Florida with
Mazer.7
Following Mazer and West-Hem’s receipt of the blueprints, Mazer had
West-Hem employees make copies of the blueprints using West-Hem equipment
and store the original blueprints at West-Hem’s Florida office. In March or April
2004, Mazer also had West-Hem employees ship a copy of the blueprints, using
West-Hem’s Federal Express account, to APM’s office in Belgium. Subsequently,
West-Hem issued one or more invoices to APM charging approximately $25,000
for the blueprints, and APM paid.
On August 27, 2004, Mazer pled guilty in Florida state court to a criminal
charge of dealing in stolen property, in violation of Fla. Stat. § 812.019, in
connection with his purchase and sale of the stolen Pratt blueprints. Additionally,
in or around February 2005, in connection with the theft of the Pratt blueprints,
DiLorenzo pled guilty in federal court in Connecticut to a charge of accessing a
protected computer without authorization to further an intended fraud, in violation
of 18 U.S.C. § 1030(a)(4).
7
The complaint does not allege whether the balance of the purchase money came from
West-Hem’s corporate funds, Mazer’s personal funds, some combination of the two, or some
other source.
6
B.
UTC brought this lawsuit against Mazer, West-Hem, and APM on
November 3, 2005.8 Its complaint, as amended, contains eleven counts,9 alleging
torts under Florida common and statutory law. All three defendants were charged
with civil theft, pursuant to Fla. Stat. §§ 812.014 and 772.11, and conversion;
West-Hem and APM were charged with unjust enrichment; West-Hem and Mazer
were charged with dealing in stolen property, pursuant to Fla. Stat. §§ 812.019 and
772.1; and all three defendants were charged with conspiring to commit the above
torts.
West-Hem moved the court to dismiss the complaint under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim for relief. APM moved the
court to dismiss it from the case under Federal Rule of Civil Procedure 12(b)(2)
for lack of personal jurisdiction. APM accompanied its motion with the affidavit
of its managing director, Wilhelm Loetschert, in which Loetschert admitted his
8
The district court dismissed UTC’s initial complaint without prejudice, with leave to
amend, for failure to state a claim against West-Hem and for lack of personal jurisdiction over
APM. This opinion addresses the claims set out in UTC’s complaint, as amended.
9
Counts I, IV, VII, X, and XI asserted respectively against West-Hem claims for civil
theft, conversion, unjust enrichment, dealing in stolen property, and conspiracy (with Mazer and
APM to commit the torts presented by the other counts). Counts II, V, IX, and XI asserted
respectively against Mazer claims for civil theft, conversion, dealing in stolen property, and
conspiracy. Counts III, VI, VIII, and XI asserted respectively against APM claims for civil theft,
conversion, unjust enrichment, and conspiracy.
7
limited personal presence in Florida, unrelated to APM business, in December
2003 and from January 31, 2004 to March 24, 2004; described APM’s lack of
general contacts with the state of Florida; and specifically denied several newly-
added factual allegations relating to him and APM appearing in UTC’s complaint.
In response to the Loetschert affidavit, UTC attempted to establish personal
jurisdiction over APM by tendering a summary of an August 24, 2004 interview of
Russell Mazer, prepared by Special Agent Andrew Dunphy of the Office of the
Inspector General of the U.S. Department of Defense (the “Dunphy Report”), in
which Mazer purportedly provided information corroborating UTC’s allegations
concerning Loetschert and APM’s knowledge and conduct – in Florida –
regarding the purchase of the stolen blueprints.10
The district court granted both motions. Addressing West-Hem’s motion,
the court found impossible UTC’s allegation that Mazer committed his wrongful
10
It appears that Special Agent Dunphy, who is based in Connecticut, conducted his
interview of Mazer as part of the federal government’s investigation into DiLorenzo’s criminal
conduct with respect to the Pratt blueprints. Mazer was represented by counsel and spoke to
Dunphy under the representation of the U.S. Attorney for the District of Connecticut that nothing
he said would be used against him “in the Government’s direct case in the event a federal
criminal case is brought against [him] in the District of Connecticut.” Assistant U.S. Attorney
Maria Kahn, also based in Connecticut, attended part of the interview by telephone. Also joining
Special Agent Dunphy at the Mazer interview, which took place at the Office of the Florida
Department of Law Enforcement in West Palm Beach, Florida, was Assistant Statewide
Prosecutor William Shepherd of the Office of the Florida Attorney General, who presumably
attended in connection with a criminal case the State of Florida was bringing against Mazer.
8
acts both personally and in his capacity as president of West-Hem: “Simply put, if
Mazer personally committed the crimes, he could not also have committed them as
a representative of West-Hem.” Furthermore, the district court found that the
complaint failed to establish that Mazer’s conduct was within the scope of his
West-Hem employment because “there is no allegation that West-Hem makes the
buying or selling of blueprints part of its business.” Instead, the court continued,
Mazer’s conduct could only be within the scope of his employment “if West-Hem
was in the business of ‘fencing’ stolen property.”
Turning to APM’s motion, the district court concluded that it lacked general
jurisdiction over APM due to the absence of general, systematic business contacts
by APM with Florida. The court further found that the Loetschert affidavit had
specifically rebutted each of UTC’s allegations of APM’s contacts with Florida
relating to the causes of action stated in the complaint. The court rejected UTC’s
argument that Mazer’s statements in the Dunphy Report established jurisdiction on
the ground that Mazer’s statements constituted hearsay within hearsay and thus
were inadmissible and incompetent. As a further basis for granting APM’s
motion, the court pointed to cases interpreting the “[c]ommitting a tortious act
within this state” provision of the Florida long-arm statute, Fla. Stat. §
48.193(1)(b), as requiring a claim of injury in Florida, something the complaint
9
did not allege. Finally, the court found UTC’s conspiracy claim against APM
insufficient to support personal jurisdiction due to the absence of a viable
allegation that APM, West-Hem, and Mazer had conspired to commit a tort in
Florida.
Upon UTC’s motion, the district court granted separate and final judgments,
pursuant to Rule 54(b), in favor of West-Hem and APM. This appeal followed.
II.
We review de novo the dismissal of the claims against West-Hem under
Rule 12(b)(6), accepting the allegations in the amended complaint as true and
construing them in the light most favorable to UTC. Mills v. Foremost Ins. Co.,
511 F.3d 1300, 1303 (11th Cir. 2008). “While 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 ‘entitle[ment] to relief’
requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Id. (quoting Bell Atl. Corp. v.
Twombly, -- U.S. --, 127 S. Ct. 1955, 1964-65, 167 L. Ed. 2d 929 (2007) (citations
omitted)). “Furthermore, the plaintiff’s factual allegations, when assumed to be
true, ‘must be enough to raise a right to relief above the speculative level.’” Id.
(same).
10
UTC’s complaint asserted, in Counts I, IV, VII, X, and XI, respectively, five
claims against West-Hem: civil theft, conversion, unjust enrichment, dealing in
stolen property, and conspiracy. We examine in turn the elements necessary to
state each claim.
First, to state a claim for civil theft under Florida law, UTC must allege an
injury resulting from a violation by West-Hem of the criminal theft statute, Fla.
Stat. § 812.014.11 To do this, UTC must allege that West-Hem (1) knowingly (2)
obtained or used, or endeavored to obtain or use, UTC’s property with (3)
“felonious intent” (4) either temporarily or permanently to (a) deprive UTC of its
right to or a benefit from the property or (b) appropriate the property to West-
Hem’s own use or to the use of any person not entitled to the property. Fla. Stat.
§§ 772.11 (providing civil remedy for theft or exploitation), 812.014(1) (criminal
theft statute); see Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1326-27 (11th
Cir. 2006); Gersh v. Cofman, 769 So. 2d 407, 409 (Fla. 4th DCA 2000) (“In order
11
The Florida theft statute provides:
(1) A person commits theft if he or she knowingly obtains or uses, or endeavors to
obtain or use, the property of another with intent to, either temporarily or
permanently:
(a) Deprive the other person of a right to the property or a benefit from the
property.
(b) Appropriate the property to his or her own use or to the use of any
person not entitled to the use of the property.
Fla. Stat. § 812.014(1).
11
to establish an action for civil theft, the claimant must prove the statutory elements
of theft, as well as criminal intent.”).
Conversion is an “act of dominion wrongfully asserted over another’s
property inconsistent with his ownership therein.” Thomas v. Hertz Corp., 890
So. 2d 448, 449 (Fla. 3d DCA 2004) (quotation omitted). The tort “may occur
where a person wrongfully refuses to relinquish property to which another has the
right of possession,” and it “may be established despite evidence that the
defendant took or retained property based upon the mistaken belief that he had a
right to possession, since malice is not an essential element of the action.”
Seymour v. Adams, 638 So. 2d 1044, 1047 (Fla. 5th DCA 1994) (citations
omitted).
“The essential elements of a claim for unjust enrichment are: (1) a benefit
conferred upon a defendant by the plaintiff, (2) the defendant’s appreciation of the
benefit, and (3) the defendant’s acceptance and retention of the benefit under
circumstances that make it inequitable for him to retain it without paying the value
thereof.” Rollins, Inc. v. Butland, 951 So. 2d 860, 876 (Fla. 2d DCA 2006).
Like civil theft, a civil claim for dealing in stolen property requires an injury
resulting from a violation of the criminal statute prohibiting dealing in stolen
12
property, Fla. Stat. § 812.019.12 Accordingly, to state a claim for dealing in stolen
property, UTC must allege that West-Hem, with felonious intent, (1) trafficked in,
or endeavored to traffic in, property that it knew or should have known was stolen,
or (2) initiated, organized, planned, financed, directed, managed, or supervised the
theft of property and trafficked in such stolen property. Fla. Stat. §§ 772.11
(providing civil remedy for theft or exploitation), 812.019 (criminal dealing in
stolen property statute); cf. In re Standard Jury Instructions in Criminal Cases –
Report No. 2006-2, 962 So. 2d 310, 327 (Fla. 2007).
Finally, to state a claim for civil conspiracy, UTC must allege: “(a) an
agreement between two or more parties, (b) to do an unlawful act or to do a lawful
act by unlawful means, (c) the doing of some overt act in pursuance of the
conspiracy, and (d) damage to plaintiff as a result of the acts done under the
conspiracy.” Charles v. Fla. Foreclosure Placement Ctr., LLC, 988 So. 2d 1157,
1159-60 (Fla. 3d DCA 2008).
12
The Florida dealing in stolen property statute provides:
(1) Any person who traffics in, or endeavors to traffic in, property that he or she
knows or should know was stolen shall be guilty of a felony of the second degree,
punishable as provided in ss. 775.082, 775.083, and 775.084.
(2) Any person who initiates, organizes, plans, finances, directs, manages, or
supervises the theft of property and traffics in such stolen property shall be guilty
of a felony of the first degree, punishable as provided in ss. 775.082, 775.083, and
775.084.
Fla. Stat. § 812.019.
13
Counts I, IV, VII, X, and XI appear to recite all of the required elements of
these five claims against West-Hem. The question, however, is whether those
counts also allege facts sufficient to maintain the claims against West-Hem, as
opposed to only its president Mazer individually.
It is axiomatic that a corporation like West-Hem cannot act other than
through its officers, employees, and agents. Palazzo v. Gulf Oil Corp., 764 F.2d
1381, 1385 (11th Cir. 1985) (“The rule is well established that a corporation is an
artificial entity that can act only through agents . . . .”). But this non-controversial
truth does not necessarily impute to the corporation any and all conduct by one
who at times also acts on a corporation’s behalf. Indeed, the district court’s
overriding objections to UTC’s complaint addressed the extent to which the
complaint unambiguously established (1) that Mazer acted in the scope of his
employment, in pursuit of West-Hem’s business interests, when he purchased and
re-sold the stolen Pratt blueprints; and (2) that Mazer acted for the benefit of
West-Hem, as opposed to himself. The district court concluded on both scores
that UTC’s pleading failed to tie Mazer’s actions to West-Hem in a manner
sufficient to state a claim for corporate liability. At this threshold pleading stage,
we disagree.
“Under the doctrine of respondeat superior, an employer cannot be held
14
liable for the tortious or criminal acts of an employee, unless the acts were
committed during the course of the employment and to further a purpose or
interest, however excessive or misguided, of the employer.” Iglesia Cristiana La
Casa Del Senor, Inc. v. L.M., 783 So. 2d 353, 356 (Fla. 3d DCA 2001). Under
Florida law, an action falls within the scope of employment if the conduct: (1) is
of the kind the employee was employed to perform; (2) occurred within the time
and space limits of the employee’s employment; and (3) was activated at least in
part by a purpose to serve the employment. Spencer v. Assurance Co. of Am., 39
F.3d 1146, 1150 (11th Cir. 1994); Iglesia Cristiana, 783 So. 2d at 357. The
question is whether, under this legal standard and in view of the facts available to
UTC at the time of pleading, UTC adequately alleged that Mazer was acting
within the scope of his West-Hem employment.
In its recitation of the facts, UTC had virtually no choice but to link the
allegations against West-Hem closely to those against the company’s president,
Mazer. For example, its complaint stated that “Mazer was acting as the President
of West Hem and within the scope of his employment when he committed the
tortious and criminal acts described in this Amended Complaint” and that “[a]t all
relevant times, Mazer was President and a substantial owner of West Hem and was
entirely responsible for the daily operations of West Hem.” Am. Compl. at ¶¶ 12,
15
14. Moreover, UTC alleged that Mazer – all “as President of West Hem” –
traveled to Connecticut in November 2003 for his initial meeting with DiLorenzo;
gave DiLorenzo West-Hem’s Federal Express account information to use in
shipping the blueprints to West-Hem; instructed West-Hem employees to send
DiLorenzo payment, make copies of the blueprints, ship a copy of the blueprints to
APM, and generate invoices from West-Hem to APM for the blueprints; and
stored the original blueprints. Id. at ¶¶ 15, 27, 29-31, 35-36.13
West-Hem argues that UTC failed to plead the three elements required for a
finding that Mazer’s conduct was within the scope of his employment and instead
relied on conclusory statements of law or mixed law and fact. Nevertheless,
although UTC, in its complaint, did not expressly allege these three elements, we
conclude that the complaint’s allegations regarding Mazer’s conduct “within the
scope of his employment” either incorporate these elements or generate an
inference of these elements sufficient for notice pleading and to withstand a Rule
12(b)(6) motion to dismiss.
UTC has pled facts that, when read together, at least arguably allege (1) that
Mazer’s conduct in purchasing the blueprints for, and selling them to, one of
13
These factual allegations were incorporated into each of the counts brought against
West-Hem. Am. Compl. at ¶¶ 69, 86, 98, 124, 132.
16
West-Hem’s aviation customers (whether or not the blueprints were stolen) could
reasonably have been the kind of task for which he was employed; (2) that Mazer
acted within the time and space constraints of his employment, i.e., he acted while
on duty at West-Hem; and (3) that Mazer could reasonably have been acting to
serve and benefit West-Hem’s business. The allegations that Mazer was West-
Hem’s top officer, with broad responsibilities for the company’s operations, and
that he utilized West-Hem resources and employees in obtaining, copying, storing,
and shipping the blueprints further bolster UTC’s good faith basis for alleging that
these actions were taken within the scope of Mazer’s employment at West-Hem.
Discovery to be taken by UTC may well reveal additional evidence to be used in
carrying its burden, on summary judgment or at trial, of establishing that Mazer
acted within the scope of employment.
Should West-Hem come forward with evidence that Mazer was in some way
not acting within the scope of his West-Hem employment, the jury will have the
chance to resolve this question of fact. See Canaveras v. Continental Group, Ltd.,
896 So. 2d 855, 858 (Fla. 3d DCA 2005) (“Where . . . there is conflicting evidence
on the issue of whether an employee is acting within the scope of employment, a
jury question is presented.”). Indeed, it may well be the case that Mazer was
acting outside the scope of his employment. Perhaps his job description, or even a
17
resolution of the West-Hem Board of Directors, expressly prohibited dealing in
blueprints or proscribed any illegal conduct. Alternatively, perhaps UTC will be
unable to muster evidence sufficient to establish that Mazer’s conduct was within
his scope of employment. However, at the pleading stage, UTC could not possibly
have had access to the inside West-Hem information necessary to prove
conclusively – or even plead with greater specificity – the factual basis for holding
West-Hem liable for Mazer’s conduct. That is why we have discovery. At the
pleading stage, we assess only whether UTC’s allegations are “enough to raise a
right to relief above the speculative level.” Mills, 511 F.3d at 1303 (quoting
Twombly, 550 U.S. at 555, 127 S. Ct. at 1964-65). Giving UTC, which is at a
clear informational disadvantage, some benefit of the doubt to go along with the
specific facts it has pled, its allegation that Mazer was acting on behalf of West-
Hem reaches at least above the speculative level.
The district court held otherwise in part because it found “no allegation that
West-Hem makes the buying or selling of blueprints part of its business,” and
concluded that Mazer’s conduct could only be within the scope of his employment
“if West-Hem was in the business of ‘fencing’ stolen property.” This reading of
UTC’s complaint is far too cramped. UTC clearly alleged that West-Hem “is in
the business of buying and selling aircraft parts and related support materials.”
18
Am. Compl. at ¶ 6 (emphasis added). Blueprints for tooling used in servicing
aircraft engines reasonably fall within the ambit of “related support materials.”
Should West-Hem later come forward with evidence that, within the industry,
blueprints are considered an entirely separate line of business, that would create a
question of fact for the jury, not a basis for dismissal for failure to state a claim.
See Canaveras, 896 So. 2d at 858. Nor was UTC required to go so far as to allege
that West-Hem was established as an explicitly criminal enterprise, or that Mazer’s
job description included criminal functions, in order to state a claim for corporate
liability for an employee’s discharge of his duties in an illegal manner. If aviation
blueprints could reasonably fall within West-Hem’s stock in trade, and if part of
Mazer’s employment duties was to buy and sell the goods in which West-Hem
traded, then West-Hem could reasonably be answerable for its employee’s illegal
or tortious conduct in carrying out those tasks.
The district court was also disturbed by UTC’s allegation that Mazer acted
both personally and on behalf of West-Hem, which the court found to be
irreconcilably inconsistent. It is true that the complaint contains a degree of
ambiguity regarding whether Mazer acted for himself, for West-Hem, or for both,
as well as whether it was Mazer or West-Hem that provided the funds to acquire
the blueprints from DiLorenzo and that received the proceeds from APM. At the
19
initial pleading stage, however, we find UTC’s allegations sufficient to state the
claims asserted against West-Hem.
First, we are not troubled by what the district court saw as inconsistent
allegations. Rule 8(d) of the Federal Rules of Civil Procedure expressly permits
the pleading of both alternative and inconsistent claims.14 Thus, UTC’s complaint
is not subject to dismissal simply because it alleges that both Mazer, individually,
and West-Hem committed the tortious conduct, even if it would be impossible for
both to be simultaneously liable (which question of impossibility we need not, and
do not, resolve).
Furthermore, it is hard to imagine how UTC could have pled its case with
greater specificity or accuracy at this stage. The intricacies of the scope of
Mazer’s employment authority, as well as the details regarding exactly who
provided the funds for DiLorenzo and received the benefit of the payments from
14
Rule 8, in relevant part, provides:
(d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency.
...
(2) Alternative Statements of a Claim or Defense. A party may set
out 2 or more statements of a claim or defense alternatively or
hypothetically, either in a single count or defense or in separate
ones. If a party makes alternative statements, the pleading is
sufficient if any one of them is sufficient.
(3) Inconsistent Claims or Defenses. A party may state as many
separate claims or defenses as it has, regardless of consistency.
Fed. R. Civ. P. 8(d).
20
APM, are peculiarly within the knowledge of Mazer and West-Hem. Although
UTC has pled a reasonable good faith basis for its claims against both Mazer and
West-Hem, it has not yet been in a position to know all of the particulars. Should
discovery reveal that Mazer was undisputably outside the scope of his employment
or that he, not West-Hem, was the sole beneficiary of the sale of the blueprints,
then West-Hem may be entitled to summary judgment or judgment as a matter of
law. At the initial pleading stage, however, UTC’s allegations were sufficient to
state a claim.
For the foregoing reasons, we conclude that the allegations of Counts I, IV,
VII, X, and XI, when read in the light most favorable to UTC, are sufficient to
state a non-speculative claim for relief against West-Hem. We reverse the district
court’s holding to the contrary.
III.
We review de novo the district court’s dismissal of the claims against APM
for lack of personal jurisdiction. Meier ex rel. Meier v. Sun Int’l Hotels, Ltd.
288 F.3d 1264, 1268 (11th Cir. 2002). A plaintiff seeking the exercise of personal
jurisdiction over a nonresident defendant bears the initial burden of alleging in the
complaint sufficient facts to make out a prima facie case of jurisdiction. Posner v.
Essex Ins. Co., Ltd., 178 F.3d 1209, 1214 (11th Cir. 1999) (per curiam); see
21
Polskie Linie Oceaniczne v. Seasafe Transport A/S, 795 F.2d 968, 972 (11th Cir.
1986) (describing procedure for plaintiff to establish personal jurisdiction under
Florida’s long-arm statute). Where, as here, the defendant challenges jurisdiction
by submitting affidavit evidence in support of its position, “the burden
traditionally shifts back to the plaintiff to produce evidence supporting
jurisdiction.” Meier, 288 F.3d at 1269; Posner, 178 F.3d at 1214; see Polskie
Linie Oceaniczne, 795 F.2d at 972 (noting that, if the defendant makes a showing
of the inapplicability of the long-arm statute, “the 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”).
A federal court sitting in diversity undertakes a two-step inquiry in
determining whether personal jurisdiction exists: the exercise of jurisdiction must
(1) be appropriate under the state long-arm statute and (2) not violate the Due
Process Clause of the Fourteenth Amendment to the United States Constitution.15
Horizon Aggressive Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162, 1166
(11th Cir. 2005); see also Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502
15
Because we conclude, as discussed below, that UTC has failed to establish through its
allegations or competent evidence that APM is subject to personal jurisdiction under Florida’s
long-arm statute, we do not reach the due process inquiry.
22
(Fla. 1989). “The reach of the [Florida long-arm] statute is a question of Florida
law. [F]ederal courts are required to construe [such law] as would the Florida
Supreme Court. Absent some indication that the Florida Supreme Court would
hold otherwise, [federal courts] are bound to adhere to decisions of [Florida’s]
intermediate courts.” Meier, 288 F.3d at 1271 (internal quotation marks and
citations omitted).
UTC asserts that APM is subject to jurisdiction under subsection (1)(b) of
the Florida long-arm statute, which provides:
(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 or herself and, if he or she is a
natural person, his or her personal representative to the jurisdiction of
the courts of this state for any cause of action arising from the doing
of any of the following acts:
...
(b) Committing a tortious act within this state.
Fla. Stat. § 48.193(1)(b). UTC’s complaint asserted four claims against APM, in
Counts III, VI, VIII, and XI: civil theft, conversion, unjust enrichment, and
conspiracy. Thus, UTC had to establish by the allegations in its complaint and, if
challenged by APM as it was, by its evidence that APM, with respect to at least
one of these counts, engaged in tortious conduct in Florida relating to the theft and
23
sale of the Pratt blueprints.16
UTC essentially makes the following explicit allegations regarding APM’s
conduct in Florida relating to the Pratt blueprints:
16
We have little trouble dismissing any contention that APM is subject to general
jurisdiction under Florida’s long-arm statute, which provides for the exercise of personal
jurisdiction over “[a] defendant who is engaged in substantial and not isolated activity within this
state . . . whether or not the claim arises from that activity.” Fla. Stat. § 48.193(2). Florida
courts have held this “substantial and not isolated activity” requirement to mean, and subsume,
the “continuous and systematic general business contacts” standard sufficient to satisfy the due
process requirement of minimum contacts for general jurisdiction, as set forth by the Supreme
Court in Helicopteros Nacionales de Colombia S.A. v. Hall, 466 U.S. 408, 104 S. Ct. 1868, 80 L.
Ed. 2d 404 (1984), such that “if the defendant’s activities meet the requirements of section
48.193(2), minimum contacts is also satisfied.” Woods v. Nova Companies Belize Ltd., 739 So.
2d 617, 620 (Fla. 4th DCA 1999). UTC’s complaint does allege that “Defendant APM is a
foreign corporation that regularly conducts business in this district; whose Managing Director,
Wilhelm Loetschert, was domiciled in this district for an extended period of time; that conducted
business on behalf of APM from this district . . . .” Am. Compl. at ¶ 9. However, in his
affidavit, Loetschert specifically denied, in detail, that APM conducted business in Florida, see
Loetschert Affidavit at ¶¶ 6-11, and UTC has provided no evidence to the contrary. Moreover,
the factual allegations regarding Loetschert’s temporary, less-than-two-month stay in Florida,
which appears to have been personal in nature, unrelated to his work for APM, and, in any event,
insufficient to support a claim that he was “domiciled” in the state, as well as Loetschert’s
purported business conducted in Florida on behalf of APM, fall far short of amounting to either
“substantial and not isolated activity” or “continuous and systematic general business contacts”
by APM within Florida. See Slaihem v. Sea Tow Bahamas Ltd., 148 F. Supp. 2d 1343, 1350-51
(S.D. Fla. 2001) (“To establish that a defendant is engaged in substantial activity within the state,
the activity must be more than ‘incidental, almost entirely personal contacts with the state . . . .’”
(citation omitted)); Snyder v. McLeod, 971 So. 2d 166, 169 (Fla. 5th DCA 2007) (“A legal
residence or ‘domicile’ is the place where a person has fixed an abode with the present intention
of making it his or her permanent home.” (citation omitted)). Nor is the complaint’s allegation
that “APM and West Hem have conducted other business involving the sale and purchase of
aircraft parts from West Hem in Florida,” without any allegation or showing of the magnitude or
frequency of such business, sufficient to constitute “substantial and not isolated activity” by
APM in Florida. Am. Compl. at ¶ 42. UTC suggests that Mazer, in his answer to the complaint,
admitted that APM does business in the Southern District of Florida. Appellant’s Br. at 20.
Without deciding the thorny question of whether an admission by Mazer could even bind APM
in this context, we note that Mazer’s response to paragraph 9 of the complaint in fact expressly
carves APM out of his admission: “Admitted except I am without knowledge of what acts APM
committed.”
24
• Loetschert lived in Florida, at Mazer’s house, from January 2004
through March 24, 2004. Am. Compl. at ¶¶ 44-46.
• While living in Florida, Loetschert, as an agent of APM, told Mazer
that the price DiLorenzo wanted for the blueprints was too high,
decided with Mazer the price West-Hem would pay DiLorenzo for the
blueprints, and helped West-Hem negotiate the price with DiLorenzo.
Id. ¶¶ 48, 135.
• Loetschert, while in Florida, provided a portion of the cash that
Mazer had sent to DiLorenzo as West-Hem’s payment for the
blueprints. Id. ¶¶ 49, 139.
• While in Florida, and in order to avoid taking a copy of the blueprints
with him when he returned to Belgium, Loetschert arranged for
Mazer to ship the copy of the blueprints from West-Hem’s Florida
office to APM’s office in Belgium, via West-Hem’s Federal Express
account. Id. ¶¶ 51, 141.
• “APM, through its agent Loetschert, actively planned and participated
in the theft of the Blueprints while Loetschert was living with Mazer
in Florida.” Id. ¶ 60.
All of the other allegations in the complaint relating to APM either involve
conduct outside of Florida or do not state where the conduct took place.17
17
For example, UTC’s complaint alleges that APM “paid West Hem and Mazer
approximately $25,000 for the stolen Blueprints in 2004”; “purchased the stolen Blueprints from
West Hem at a far lower price than it would have paid to Pratt”; and “knew that the market value
of these Blueprints was greatly in excess of $25,000.” Am. Compl. at ¶¶ 52, 56, 59, 143.
However, the allegations of the complaint are unclear about whether APM made this payment or
had this knowledge while Loetschert was in Florida or only after he had returned to Belgium.
Incidentally, in the Dunphy Report, on which UTC relies but which we find to be inadmissible
and otherwise decline to consider as discussed infra, Mazer is reported to have said that he does
not believe that APM ever actually paid anything on the West-Hem invoice for the blueprints.
These allegations, as pled, are insufficient to establish tortious conduct by APM in Florida.
25
These allegations appear to be sufficient to establish a prima facie case for
the exercise of personal jurisdiction over APM. However, APM, through its
submission of Loetschert’s affidavit, has specifically denied each allegation.
UTC, citing Posner as an analogous case, contends that Loetschert offered no
more than conclusory denials that the court should disregard. In Posner, we found
the defendant’s affidavit, offered to challenge the plaintiffs’ jurisdictional
allegations, to be “of little significance.” Posner, 178 F.3d at 1215. Specifically,
we observed,
The affidavit primarily explains [the defendant’s] corporate structure
and status; summarily asserts that [the defendant] has never done
business in or directed contacts into Florida; admits certain peripheral
connections with the state; and denies in a conclusory way any other
actions that would bring [the defendant] within the ambit of Florida’s
long-arm statute. For example, paragraph five covers three-quarters
of a page and contends, by reciting the long-arm statute essentially
verbatim, that the jurisdictional statute does not apply to [the
defendant]. Such statements, although presented in the form of
factual declarations, are in substance legal conclusions that do not
trigger a duty for Plaintiffs to respond with evidence of their own
supporting jurisdiction.
Id. Accordingly, we considered “only those portions of the [affidavit] that set
forth specific factual declarations within the affiant’s personal knowledge.” Id.
Loetschert’s affidavit, in contrast, is not so conclusory and, as such, merits
our consideration. The affidavit does start with a brief description of APM’s
26
corporate structure, admit certain peripheral connections between Loetschert and
the state and between APM and the other parties, and include the conclusory
assertion that “[n]either I nor APM committed any tortious or criminal acts within
the territorial jurisdiction of this Court,” Loetschert Affidavit at ¶¶ 2-5, 13-16, but
it does not end there. Rather, Loetschert goes on to deny – specifically, based on
his personal knowledge, and under penalty of perjury – numerous factual
allegations lodged by UTC.18 These specific factual denials include:
• “At no time while I was in Florida did I conduct business transactions
on behalf of APM.” Id. ¶ 11.
• “Neither I nor APM ‘actively planned and participated in the theft of
the Blueprints’ while I was living in Florida.” Id. ¶ 24.
• “APM, at no time (including the time I was staying in Florida) ever
assisted Defendant West-Hem in negotiating a price for the blueprints
with Anthony DiLorenzo, and did not decide, alone or together with
anyone, what Defendant West-Hem should pay Mr. DiLorenzo for
those blueprints.” Id. ¶ 28.
• “I never provided ‘a portion of the cash that Mazer instructed West
Hem employees to send to DiLorenzo as payment for the
Blueprints.’” Id. ¶ 30.
18
Loetschert also makes several specific factual assertions regarding APM’s lack of
business ties to Florida relevant to the question of general jurisdiction, to wit: “APM is not
registered with the Florida Secretary of State to transact business in Florida”; “APM does not
conduct business in the Southern District of Florida, specifically, or in the State of Florida, in
general”; “APM has no business office in Florida”; “APM does not own or lease any real
property in Florida”; and “APM does not maintain a depository or bank account in Florida.”
Loetschert Affidavit at ¶¶ 6-10.
27
• “I never arranged with Defendant Mazer to ship the blueprints to
APM in Belgium ‘to avoid taking the copy of the stolen Blueprints on
the plane with [me] when [I] returned to Belgium.’ In fact, it is my
understanding that the full set of blueprints in question were not
received by Defendants Mazer or West-Hem until after I had already
left, in March, 2004, the United States for Belgium.” Id. ¶ 31.
These statements are not mere legal conclusions; they are specific factual
denials that challenge each and every factual allegation raised by UTC regarding
APM’s conduct in Florida in connection with the Pratt blueprints.19 These
“specific factual declarations within the affiant’s personal knowledge,” in contrast
to those in the affidavit in Posner, are sufficient “to shift to the Plaintiff[] the
burden of producing evidence supporting jurisdiction.” Posner, 178 F.3d at 1215.
UTC attempted to respond and establish jurisdiction by means of Mazer’s
purported statements about APM and Loetschert contained in the Dunphy Report,
but the district court found these statements to be inadmissable hearsay and
declined to consider them. In so deciding, the district court did not abuse its
discretion. See United States v. Brown, 441 F.3d 1330, 1359 (11th Cir. 2006)
(“We review a district court’s hearsay ruling for abuse of discretion.”).
19
To the extent, if any, that UTC’s allegations regarding APM’s knowledge of the true
value of the blueprints may be relevant to the jurisdictional inquiry, see supra note 17, Loetschert
also specifically denies those allegations: according to his affidavit, “APM did not ‘knowingly
and wrongfully’ obtain the blueprints at a ‘black market, below value price,’” and “APM, at all
times relevant to this lawsuit, never knew that the value of the blueprints in question ‘was greatly
in excess of $5,000,’ that the market value was ‘greatly in excess of $25,000,’ or that they were
the ‘protected property of Pratt.’” Loetschert Affidavit at ¶¶ 18, 22.
28
UTC argues that Mazer’s statements in the Dunphy Report should have
been considered under the exceptions to the rule against hearsay for (1) records of
regularly conducted business activity, and (2) public records and reports. Fed. R.
Evid. 803(6), (8). For the exceptions to apply, the report must contain “factual
findings” that are “based upon the knowledge or observations of the preparer of
the report,” as opposed to a mere collection of statements from a witness. Miller
v. Field, 35 F.3d 1088, 1091 (6th Cir. 1994). “It is well established that entries in
a police report which result from the officer’s own observations and knowledge
may be admitted but that statements made by third persons under no business duty
to report may not.” United States v. Pazsint, 703 F.2d 420, 424 (9th Cir. 1983)
(finding Rule 803(6) inapplicable); see also Miller, 35 F.3d at 1091 (finding Rule
803(8) inapplicable); Parsons v. Honeywell, Inc., 929 F.2d 901, 907 (2d Cir. 1991)
(same). In other words, “[p]lacing otherwise inadmissible hearsay statements by
third-parties into a government report does not make the statements admissible.”
Commodity Futures Trading Comm’n v. Wilshire Inv. Mgmt. Corp., 407 F. Supp.
2d 1304, 1315 n.2 (S.D. Fla. 2005), aff’d in part, vacated in part on other grounds,
531 F.3d 1339 (11th Cir. 2008).
Here, while we need not decide whether the Dunphy Report itself is subject
to the asserted exceptions, the pertinent point is that we can say with confidence
29
that Rules 803(6) and (8) cannot render admissible Mazer’s hearsay statements
contained within the report. See Fed. R. Evid. 805. “Hearsay within hearsay
subject to an exception is not admissible.” Joseph v. Kimple, 343 F. Supp. 2d
1196, 1204 (S.D. Ga. 2004). Therefore, UTC cannot rely on Mazer’s purported
statements in the Dunphy Report to establish jurisdiction in opposition to the
Loetschert affidavit unless those statements themselves are subject to a hearsay
exception.
UTC suggests that Mazer’s statements in the Dunphy Report could be
viewed as non-hearsay admissions because Mazer is a director and part owner of
APM. Federal Rule of Evidence 801(d)(2) provides that a statement is not hearsay
if:
The statement is offered against a party and is (A) the party’s own
statement, in either an individual or a representative capacity or (B) a
statement of which the party has manifested an adoption or belief in
its truth, or (C) a statement by a person authorized by the party to
make a statement concerning the subject, or (D) a statement by the
party’s agent or servant concerning a matter within the scope of the
agency or employment, made during the existence of the relationship,
or (E) a statement by a coconspirator of a party during the course and
in furtherance of the conspiracy. The contents of the statement shall
be considered but are not alone sufficient to establish the declarant’s
authority under subdivision (C), the agency or employment
relationship and scope thereof under subdivision (D), or the existence
of the conspiracy and the participation therein of the declarant and the
party against whom the statement is offered under subdivision (E).
30
However, there is no evidence – and no reason to assume – that Mazer’s
statements to government investigators, made while he himself was facing
criminal charges, were made in a representative capacity on behalf of APM, that
APM adopted those statements, or that Mazer was authorized to make the
statements on APM’s behalf. Furthermore, because Mazer’s statements relate to
his and/or West-Hem’s sale of the blueprints to APM, they cannot also concern a
matter within the scope of his agency or employment, if any, for APM.20
Moreover, even assuming arguendo that Mazer and APM were co-conspirators,
Mazer’s statements essentially confessing to the misconduct cannot constitute
statements by a co-conspirator during the course and in furtherance of that same
conspiracy. Thus, any admissions contained in the Dunphy Report are Mazer’s
alone; they cannot be attributed to APM.
Mazer’s unsworn, unattested statements in the Dunphy Report also are not
admissible under the residual exception to the hearsay rule. Fed. R. Evid. 807.21
20
Although UTC’s complaint repeatedly alleges that Mazer was acting on behalf of
West-Hem, there is no allegation that Mazer was acting on behalf of APM.
21
Rule 807 provides:
A statement not specifically covered by Rule 803 or 804 but having equivalent
circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule,
if the court determines that (A) the statement is offered as evidence of a material
fact; (B) the statement is more probative on the point for which it is offered than
any other evidence which the proponent can procure through reasonable efforts;
and (C) the general purposes of these rules and the interests of justice will best be
served by admission of the statement into evidence. However, a statement may
31
“Congress intended the residual hearsay exception to be used very rarely, and only
in exceptional circumstances,” United States v. Ingram, 501 F.3d 963, 967 (8th
Cir. 2007), and it “appl[ies] only when certain exceptional guarantees of
trustworthiness exist and when high degrees of probativeness and necessity are
present,” United States v. Wright, 363 F.3d 237, 245 (3d Cir. 2004).
Notwithstanding the proffer agreement under which Mazer submitted to the
government interview, Mazer’s position as a target in a criminal investigation
provided him ample motivation to implicate others (even falsely), including APM,
in his misconduct in order to diffuse and mitigate his own culpability. Thus, the
statements lack the “equivalent circumstantial guarantees of trustworthiness” that
Rule 807 requires. Moreover, Mazer’s statements are not “more probative on the
point for which [they are] offered than any other evidence which the proponent
can procure through reasonable efforts.” Fed. R. Evid. 807. As further explained
below, UTC could have taken reasonable steps to obtain admissible testimony
directly from Mazer prior to the district court’s ruling on APM’s motion to
dismiss, but it failed to do so. As such, Rule 807 cannot salvage the admissibility
not be admitted under this exception unless the proponent of it makes known to
the adverse party sufficiently in advance of the trial or hearing to provide the
adverse party with a fair opportunity to prepare to meet it, the proponent’s
intention to offer the statement and the particulars of it, including the name and
address of the declarant.
Fed. R. Evid. 807.
32
of Mazer’s statements in the Dunphy Report.
At oral argument, UTC further argued that Mazer’s statements, because he
had a financial stake in APM, constituted statements against interest subject to the
exception to the hearsay rule set forth in Rule 804(b)(3) of the Federal Rules of
Evidence. Because UTC did not raise this argument in its opening brief (or at all
in the district court), it has likely been abandoned. Davis v. Coca-Cola Bottling
Co. Consol., 516 F.3d 955, 972 (11th Cir. 2008); Millennium Partners, L.P. v.
Colmar Storage, LLC, 494 F.3d 1293, 1304 (11th Cir. 2007) (“Arguments raised
for the first time on appeal are not properly before this Court.”). Even if we were
to consider this argument, however, it lacks merit for two reasons. First, Rule
804(b)(3) only applies where the declarant is unavailable, and UTC has made no
showing that Mazer was unavailable to give competent testimony. Indeed, UTC
reasonably could have taken, but failed to take, reasonable steps to obtain Mazer’s
direct testimony. Second, while it appears to be true that Mazer had an ownership
interest in APM and indirectly might have stood to lose money if APM were
implicated in the theft and sale of the Pratt blueprints and thereafter subjected to
civil or criminal liability, the criminal charges pending against Mazer would have
been a substantially greater concern to a reasonable person in Mazer’s position.
Therefore, it is reasonable to infer that spreading blame for the misconduct by
33
implicating others, even falsely, could have been at least as big a priority for
Mazer at the time of his interview with government investigators as would have
been protecting his financial stake in APM. Accordingly, the facts do not compel
a conclusion that Mazer’s statements pertaining to APM were “at the time of
[their] making so far contrary to [Mazer’s] pecuniary or proprietary interest . . .
that a reasonable person in [Mazer’s] position would not have made the statement
unless believing it to be true.” Fed. R. Evid. 804(b)(3).
In sum, while the Dunphy Report itself might be hearsay subject to an
exception, Mazer’s statements contained within the report are themselves hearsay
statements, and the rules of evidence require that, for hearsay within hearsay to be
admissible, “each part of the combined statements [must] conform[] with an
exception to the hearsay rule.” Fed. R. Evid. 805. Yet no exception applies to the
Mazer statements. Accordingly, we find no abuse of discretion in the district
court’s decision to disregard those statements.
UTC, therefore, has proffered no competent evidence to establish
jurisdiction in opposition to the denials of the jurisdictional allegations contained
in Loetschert’s affidavit. Under such circumstances, the district court correctly
found Loetschert’s unrebutted denials sufficient to negate UTC’s jurisdictional
allegations tying APM to tortious conduct in Florida. Consequently, the district
34
court properly concluded that it lacked personal jurisdiction over APM under
Florida’s long-arm statute.
Before leaving this topic, we must briefly address UTC’s argument that,
rather than dismissing for lack of personal jurisdiction over APM, the district court
should have deferred a ruling on APM’s motion and granted UTC’s “requests” for
jurisdictional discovery, including the taking of Mazer and Loetschert’s
depositions.22 Initially, “[t]he court’s denial, grant, or limitation of a motion for
discovery is reviewed for abuse of discretion.” Lowery v. Ala. Power Co., 483
F.3d 1184, 1218 n.76 (11th Cir. 2007). Here, UTC expressly recognized the
potential utility of jurisdictional discovery at least by the time it filed its response
to APM’s motion to dismiss on April 27, 2006. However, UTC never formally
moved the district court for jurisdictional discovery but, instead, buried such
requests in its briefs as a proposed alternative to dismissing APM on the state of
the current record. Furthermore, UTC does not appear to have served notices for
Mazer or Loetschert’s depositions – which notices manifested UTC’s
understanding of its ability to seek discovery during the pendency of APM’s
motion to dismiss – until late July and early August 2006. Thereafter, though
22
Tragically, we note that Loetschert perished in a helicopter accident on December 26,
2007. Therefore, even if we were to reinstate the case against APM, Loetschert would not be
available for a deposition or to testify at any trial.
35
UTC claims to have been informally working through scheduling issues with the
witnesses and responding to APM’s objections to the sufficiency of UTC’s
deposition notice for Loetschert, UTC failed to take any formal action to compel
discovery or properly issue an internationally effective subpoena for Loetschert’s
testimony.
All in all, UTC should have taken every step possible to signal to the district
court its immediate need for such discovery. But, despite the obvious urgency of
the situation, it failed to take any of these reasonable steps to seek discovery, or a
deferral of a ruling pending discovery, during the more than four months APM’s
motion was pending. “The district court, therefore, did not so much deny
discovery as it dismissed the case before discovery was taken. We cannot say that
the district court erred,” Posner, 178 F.3d at 1214 n.7, much less abused its
discretion.
Finally, we address whether UTC’s conspiracy claim is sufficient to justify
the exercise of personal jurisdiction in Florida over APM. The district court held
that, because “[n]one of the Complaint’s allegations involve an actionable tort in
Florida,” “there is no underlying tort [in Florida] to support a conspiracy claim.
As a result, personal jurisdiction does not exist over APM, a foreign corporation,
on the conspiracy claim under Florida’s long-arm statute.”
36
Under Florida law, a civil conspiracy must have as its object the
commission of an underlying tort. Whether the underlying tort must have been
completed (and thus be independently actionable), however, is open to question.
The Florida courts have been somewhat divided concerning the answer to this
question. Compare Raimi v. Furlong, 702 So. 2d 1273, 1284 (Fla. 3d DCA 1997)
(“[A]n actionable conspiracy requires an actionable underlying tort or wrong.”);
Rushing v. Bosse, 652 So. 2d 869, 875 (Fla. 4th DCA 1995) (same); Florida Fern
Growers Ass’n, Inc. v. Concerned Citizens of Putnam County, 616 So. 2d 562,
565 (Fla. 5th DCA 1993) (same), with Wilcox v. Stout, 637 So. 2d 335, 336 (Fla.
2d DCA 1994) (“Florida recognizes that civil conspiracies may exist as an
independent tort.”); see also Walters v. Blankenship, 931 So. 2d 137, 140 (Fla. 5th
DCA 2006) (“As for the count of civil conspiracy, we conclude it is viable, based
either on the underlying tortious interference count or as an independent tort . . . .
Generally an actionable conspiracy requires an actionable underlying tort or wrong
. . . . However, an alternative basis for a civil conspiracy claim exists where the
plaintiff can show some ‘peculiar power of coercion’ possessed by the
conspirators by virtue of their combination, which an individual acting alone does
not possess.” (citations omitted)).
In this appeal, however, we need not enter the morass of whether or when
37
Florida law requires an independent tort to support a civil conspiracy claim
because, in any event, UTC’s conspiracy allegations are insufficient to justify the
exercise of personal jurisdiction over APM. Florida courts have held that the
state’s long-arm statute can support personal jurisdiction over any alleged
conspirator where any other co-conspirator commits an act in Florida in
furtherance of the conspiracy, even if the defendant over whom personal
jurisdiction is sought individually committed no act in, or had no relevant contact
with, Florida. See Machtinger v. Inertial Airline Servs., Inc., 937 So. 2d 730, 734-
36 (Fla. 3d DCA 2006) (finding personal jurisdiction existed in Florida where
conspiracy was made in Ohio but acts in furtherance of the conspiracy were done
in and directed toward Florida); Wilcox, 637 So. 2d at 337 (“if [plaintiff] has
successfully alleged that any member of that conspiracy committed tortious acts in
Florida in furtherance of that conspiracy, then all of the conspirators are subject to
the jurisdiction of the state of Florida through its long-arm statute”); see also
Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So. 2d 582, 584-85 (Fla.
2000) (finding personal jurisdiction in Florida over participant in a nationwide
price-fixing conspiracy in which some co-conspirators, but not the defendant at
issue, made sales into Florida).
Here, in contrast, UTC has alleged nothing that clearly connected APM to a
38
conspiracy made or carried out in Florida. At the threshold, as explained above,
we cannot consider the allegations about APM’s conduct in Florida because the
Loetschert affidavit, which UTC has failed to rebut with competent evidence,
specifically denies those allegations. Thus, any conspiracy-based exercise of
personal jurisdiction must be founded on conduct committed in Florida by others
that can be attributed to APM as a co-conspirator.
The gist of the conspiracy described in the complaint can be described as,
primarily, a conspiracy to steal the Pratt blueprints and, secondarily, a conspiracy
to resell the already-stolen blueprints. The conspiracy to steal the blueprints was
allegedly made between Mazer and DiLorenzo, ostensibly in Connecticut (not
Florida), at some time before the actual theft, which occurred “between February
2004 and March 2004.” Am. Compl. at ¶ 24. Moreover, the theft itself occurred
in Connecticut. See April Indus., Inc. v. Levy, 411 So. 2d 303, 305-06 (Fla. 3d
DCA 1982) (finding no personal jurisdiction in Florida where, even assuming a
conspiracy was made in Florida, the tortious act essential to causing the alleged
wrong occurred in New York). To tie APM to this conspiracy to steal in a manner
adequate to support personal jurisdiction in Florida, UTC had to allege
unambiguously that APM was involved in a Florida-based agreement to steal –
i.e., involved in a meeting of the minds with at least one other co-conspirator –
39
before the time of the theft. See, Charles, 988 So. 2d at 1159 (“A civil conspiracy
requires: (a) an agreement between two or more parties . . . .”).
Yet there is no allegation directly connecting APM to this initial agreement
to steal the blueprints. At most, UTC’s complaint alleges that APM’s managing
director Loetschert was living in Florida with Mazer from January 2004 until
March 24, 2004. UTC does not allege explicitly that Loetschert, while in Florida,
was in on the formation of the plot to steal the blueprints; rather, it asks us to infer
from the overlap between this time period and the period during which the theft
occurred that Loetschert participated in the formation of the plot. Such inference
cannot reasonably be made. It requires too great a speculative leap to find that,
just because he may have been in Florida at the time of the theft, Loetschert must
have been involved initially in the plot to steal the blueprints. Moreover, the
timeline set forth in the complaint yields other inferences. Mazer first met with
DiLorenzo in Connecticut – and discussed an interest in purchasing the JT8D
blueprints – in November 2003. Am. Compl. at ¶¶ 15-16. Hence, it is entirely
possible that Mazer and DiLorenzo reached their agreement to steal (and to have
DiLorenzo sell Mazer the stolen blueprints) as early as November 2003, all
without Loetschert’s knowledge or involvement and well before Loetschert’s early
2004 trip to Florida. On balance, the complaint’s allegations are simply too
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ambiguous to connect Loetschert and APM to the formation of the conspiracy to
steal the Pratt blueprints.
Nor does viewing the relevant conspiracy as one to resell the already-stolen
blueprints to APM aid UTC’s cause. This form of a conspiracy would require an
allegation that APM not only agreed to purchase the blueprints (or actually
purchased them) in Florida but also, at the time it agreed to purchase them, knew
that the blueprints would be stolen. But, again, the denials in the Loetschert
affidavit, which are unrebutted by any competent evidence, have effectively
negated UTC’s allegations regarding APM’s knowledge of the illicit character of
the blueprints. Accordingly, UTC has failed to establish directly that APM
entered into a conspiracy knowingly to purchase stolen blueprints that was either
formed or in any way carried out in Florida.
In sum, the complaint does not allege viable facts from which the inference
could reasonably be drawn that APM was part of a conspiracy either engineered
in Florida or pursuant to which a tortious act in furtherance was committed in
Florida. Thus, APM is not subject to conspiracy-imputed personal jurisdiction
under Florida’s long-arm statute. See Arch Aluminum & Glass Co. v. Haney, 964
So. 2d 228, 234-35 (Fla. 4th DCA 2007) (finding no personal jurisdiction where
neither the conspiracy nor the underlying tort occurred in Florida).
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IV.
The district court did not err in dismissing the claims against APM for lack
of personal jurisdiction. We therefore AFFIRM the court’s judgment for APM.
However, the district court did err in dismissing the claims against West-Hem for
failure to state a claim for relief. We accordingly REVERSE the court’s judgment
for West-Hem and REMAND the case for further proceedings against West-Hem.
AFFIRMED, in part, REVERSED, in part, and REMANDED.
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