William L. Richards, Jr. v. Financial Services Authority

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 27, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________
No. 10-13822
Non-Argument Calendar
_____________________
D.C. Docket No. 5:09-cv-00447-TJC-GRJ
WILLIAM L. RICHARDS, JR.,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
FINANCIAL SERVICES AUTHORITY,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 27, 2011)
Before WILSON, ANDERSON and BLACK, Circuit Judges.
PER CURIAM:
Case: 10-13822 Date Filed: 05/27/2011 Page: 1 of 9

-- 1 of 9 --

William Richards, Jr. appeals the district court’s dismissal of his diversity
complaint for lack of personal jurisdiction over the defendant, Financial Services
Authority (“FSA”), a nongovernmental regulator of the financial industry in the
United Kingdom, as well as the district court’s denial of his request for leave to
amend his complaint. The district court dismissed Richards’s complaint with
prejudice because there was no causal connection between Richards’s cause of
action and FSA’s activities in the forum state in order to confer specific
jurisdiction, because Richards offered no proof to refute FSA’s evidence that it
had nothing to do with the alleged acts in the complaint and that the documents
supporting the complaint were forgeries. The court also rejected Richards’s
argument that FSA was subject to personal jurisdiction based on a forum selection
clause in a November 2008 contract, because FSA presented unrefuted proof that
the contract was forged. The court also denied Richards’s request for leave to
amend his complaint to set forth a basis for personal jurisdiction, noting that his
complaint relied “entirely upon forged documents,” and concluding that any
amendment would be futile.
I.
On appeal, Richards argues that the district court erred in dismissing his
complaint for lack of personal jurisdiction because he was only required to make a
2
Case: 10-13822 Date Filed: 05/27/2011 Page: 2 of 9

-- 2 of 9 --

prima facie showing of jurisdiction to defeat a motion to dismiss, which he did by
referencing the November 2008 contract, which provided that the parties would
submit to jurisdiction in the appropriate United States federal district court.
Richards also argues that he alleged a basis for specific jurisdiction based on
FSA’s telephonic and electronic communications into Florida. Richards argues
that the affidavits submitted by FSA are contradictory, and that the court
accordingly should have viewed the facts in the light most favorable to him.
We review a district court’s dismissal for lack of personal jurisdiction de
novo. Horizon Aggressive Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162,
1166 (11th Cir. 2005). The district court must accept the facts alleged in the
complaint as true, to the extent that they are uncontroverted by the defendant’s
affidavits. Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990). Where the
defendant submits affidavits contrary to the allegations in the complaint, however,
the burden shifts back to the plaintiff to submit proof which establishes a basis for
the court’s exercise of jurisdiction over the defendant, unless the defendant's
affidavits contain only conclusory assertions that the defendant is not subject to
jurisdiction. Stubbs v. Wyndam Nassau Resort & Crystal Palace Casino, 447 F.3d
1357, 1360 (11th Cir. 2006). Where the plaintiff’s complaint and supporting
affidavits and documents conflict with the defendants' affidavits, the court must
3
Case: 10-13822 Date Filed: 05/27/2011 Page: 3 of 9

-- 3 of 9 --

construe all reasonable inferences in favor of the plaintiff. Id. We do not liberally
construe the pleadings of a licensed attorney proceeding pro se, as we otherwise
would for a pro se litigant. Olivares v. Martin, 555 F.2d 1192, 1194 n.1
(5th Cir. 1977).
“A federal court sitting in diversity may exercise personal jurisdiction to the
extent authorized by the law of the state in which it sits and to the extent allowed
under the Constitution.” Stubbs, 447 F.3d at 1360. Accordingly, in Florida, a
plaintiff in federal court bears the burden to establish (1) that a nonresident
defendant is subject to jurisdiction under Florida’s long-arm statute, and (2) that
sufficient minimum contacts exist to satisfy the due process requirements of the
Fourteenth Amendment. Id. at 1360; see also Madara, 916 F.2d at 1514.
Federal courts sitting in diversity in Florida must apply state law regarding
the applicability of forum selection clauses in conferring personal jurisdiction.
Alexander Proudfoot Co. World Headquarters, L.P. v. Thayer, 877 F.2d 912, 919
(11th Cir. 1989). “In Florida, conferral of personal jurisdiction clauses are not
enforced unless an independent ground for personal jurisdiction exists under the
Florida Long Arm Statute[.]” Id. at 918 (citing McRae v. J.D./M.D., Inc., 511
So.2d 540 (Fla.1987)).
Florida’s long-arm statute provides that:
4
Case: 10-13822 Date Filed: 05/27/2011 Page: 4 of 9

-- 4 of 9 --

(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 . . . 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 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; or
2. Products, materials, or things processed, serviced, or
manufactured by the defendant anywhere were used or
consumed within this state in the ordinary course of
commerce, trade, or use.
(g) Breaching a contract in this state by failing to perform acts
required by the contract to be performed in this state.
FLA. STAT. § 48.193(1).1
Florida’s long-arm statute also provides for general jurisdiction where a defendant is1
“engaged in substantial and not isolated activity” within Florida. FLA. STAT. 48.193(2). The
district court found that FSA was not engaged in substantial activity in Florida to trigger the
general jurisdiction provision of the long-arm statute. Because Richards does not dispute this
finding on appeal, he has abandoned any argument that FSA is subject to general jurisdiction.
See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (holding that a pro se litigant
abandons any issues he does not brief on appeal).
5
Case: 10-13822 Date Filed: 05/27/2011 Page: 5 of 9

-- 5 of 9 --

Because the construction and application of the Florida long-arm statute is a
question of Florida law, we must construe the long-arm statute as would the
Florida Supreme Court. See Horizon, 421 F.3d at 1166-67. A mere showing that
a nonresident company engaged in telephonic and electronic communications into
the state of Florida is insufficient to find that a company “conducted business” in
Florida under FLA. STAT. § 48.193(1)(a). See Horizon, 421 F.3d at 1167
(citing Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 628 (11th Cir. 1996)).
However, allegations about an out-of-state defendant’s telephonic, electronic, or
written communications into Florida are sufficient to trigger jurisdiction under
§ 48.193(1)(b) of the long-arm statute if there is a“connexity” between the alleged
communications and a cause of action in tort. Id. at 1168.
Here, the district court properly dismissed Richards’s complaint. First,
because Florida law does not allow a forum selection clause to serve as an
independent ground for the exercise of personal jurisdiction, the November 2008
contract alone is not an adequate basis to exercise jurisdiction over FSA, even if
the contract was valid. Next, Richards failed to present any proof or evidence to
rebut FSA’s evidence that it was in no way involved in the events alleged in the
complaint, and accordingly, failed to meet his burden of establishing personal
jurisdiction. Additionally, Richards’s argument that FSA submitted contradictory
6
Case: 10-13822 Date Filed: 05/27/2011 Page: 6 of 9

-- 6 of 9 --

affidavits is factually inaccurate, and does not in any way refute FSA’s evidence
that the documents supporting Richards’s complaint were forgeries. Richards’s
argument that FSA is subject to specific jurisdiction based on e-mail
communications is similarly without merit, as Richards has failed to present any
evidence to refute FSA’s proof that the e-mail was fraudulent. Accordingly, the
district court correctly found that it had no basis to exercise personal jurisdiction
over FSA pursuant to the Florida long-arm statute.
II.
Richards also argues that the district court erred in finding that he could not
establish a factual basis for personal jurisdiction over FSA if granted leave to
amend, because he has alleged a basis for specific jurisdiction over FSA under the
Florida long-arm statute based on FSA’s e-mail communication.
We review a district court’s denial of a motion to file an amended complaint
for abuse of discretion. Hall v. United Ins. Co. of America, 367 F.3d 1255, 1262
(11th Cir. 2004). “Ordinarily, if the underlying facts or circumstances relied upon
by a plaintiff may be a proper subject of relief, leave to amend should be freely
given.” Id. (internal quotations and citations omitted). Conversely, a district court
may properly deny leave to amend the complaint under Fed.R.Civ.P. 15(a) when
such amendment would be futile, such as when the amended complaint would still
7
Case: 10-13822 Date Filed: 05/27/2011 Page: 7 of 9

-- 7 of 9 --

be subject to dismissal. Id. at 1262-63. Additionally, “[w]here a request for leave
to file an amended complaint simply is imbedded within an opposition
memorandum, the issue has not been raised properly” pursuant to Fed.R.Civ.P.
7(b). Rosenberg v. Gould, 554 F.3d 962, 967 (11th Cir. 2009)
(quoting Posner v. Essex Ins. Co., 178 F.3d 1209, 1222 (11th Cir. 1999)).
The district court did not abuse its discretion in denying Richards’s request
for leave to amend his complaint because Richards failed to file a separate motion
for leave to amend his initial complaint, and thus, failed to comply with
Fed.R.Civ.P. 7(b). Moreover, any amendment that Richards could make would be
futile, because there is no basis for subjecting FSA to personal jurisdiction
because Richards has not asserted that he has any facts or evidence that would
demonstrate that FSA was in any way involved in the events alleged in his
complaint. We accordingly affirm the district court’s denial of Richards’s request
for leave to amend and dismissal of Richards’s complaint with prejudice.
However, because we grant FSA’s motion for sanctions against Richards in the
form of reasonable attorney’s fees and double costs, we remand to the district
court for the limited purpose of calculating and assessing appropriate sanctions.
8
Case: 10-13822 Date Filed: 05/27/2011 Page: 8 of 9

-- 8 of 9 --

AFFIRMED, WITH LIMITED REMAND.2
We deny Richards’ “Motion of Appellant Requesting Appeals Court to Vacate the2
Order of the Trial Court and Granting Appellant Leave to Amend Pleadings.”
9
Case: 10-13822 Date Filed: 05/27/2011 Page: 9 of 9

-- 9 of 9 --