TTAB
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRAIHEMARK TRIAL AND APPEAL BOARD
`
`CORE COMMUNITIES, LLC.,
`
`Applicant,
`
`vs.
`
`COLUMBUS COMMUNITIES LLC,
`
`O
`.
`pposer
`_______________*__/
`
`Opposition No. 91160236
`Serial No: 78/194,953
`
`_
`
`06-25-2004
`U.S. Patent & TMOfcITM Mail Rcpt Dt. #22
`
`COLUMBUS COMMUNITIES LLC'S RESPONSE IN OPPOSITION TO CORE
`COMMUNITIES, LLC'S MOTION TO SUSPEND PROCEEDINGS
`The Applicant, Core Communities, LLC ("Core"), seeks to suspend these opposition
`
`Communities LLC, Case No. O4-21098-CIV-MORENO, inithe United States District Court,
`Southern District of Florida ("District Court Action"). Core filed its Motion to Suspend
`
`Proceedings (“Motion To Suspend”) pursuant to 37 C.F.R. § 2.117 and TBMP § 510, which
`
`state, in relevant portion:
`
`Whenever it shall come to the attention of the Trademark Trial and
`Appeal Board that a party or parties to a pending case are engaged
`in a civil action or another Board proceeding which may have a
`bearing on the case, proceedings before the Board may be
`suspended until termination of the civil action or the other Board
`proceeding (emphasis added).
`
`Core filed the District Court Action, and sought a declaratory judgment that, inter alia,
`
`Core's use of the term "TRADITION," in connection with real estate related services, does not
`
`violate any rights of Columbus Communities LLC ("CCLLC"), 18 days after CCLLC instituted
`the present opposition. Core’s timing in this regard, coupled with the timing of Core's filing of
`its Motion To Suspend clearly demonstrates that Core filed the District Court Action as a tactical
`
`ATTORN EYS AT LAW
`GARBETT, BRONSTEIN. STIFHANY & ALLEN. P.A., O 0 TELEPHONE (305) 579-OOI2
`BO SOUTHWEST EIGHTH STREET, SUITE 3 I00, MIAMI, FLORIDA 33 I3
`
`?
`
`

`
`
`
`Serial No. 78/1 94, 953
`
`Opposition No. 91 160236
`
`TRADEMARK
`
`maneuver designed to impede and delay these Opposition Proceedings. Core’s transparent
`
`attempt at such procedural manipulation is further revealed by the fact that Core, in its haste to
`
`bring these proceedings to a halt, filed the District Court Action in the United States District
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`Court in and for the State of Florida, which carmot properly assert personal jurisdiction over
`
`CCLLC (a Mississippi limited liability company with its principal place of business in New
`
`Orleans, Louisiana), and by the fact that Core failed to effect proper service of process upon
`
`CCLLC} Hence, the District Court Action was not pending prior to Core’s Motion To Suspend;
`
`moreover, the District Court Action should also be dismissed, because of its above-referenced
`
`fatal defects, and is, in any event, not at issue2 at this time.
`
`As indicated above, 37 C.F.R. § 2.117 and TBMP § 510 provide discretion to the
`
`Trademark Trial and Appeal Board ("TTAB"), but do not require the TTAB,
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`to suspend
`
`proceedings before the TTAB pending resolution of other actions. Under the present
`
`circumstances, Core’s Motion To Suspend should be denied because there is absolutely no good
`
`cause to support it. Simply put, Core should not be pennitted to suspend and delay these
`
`proceedings by way of a hastily filed lawsuit which is both procedurally and jurisdictionally
`
`‘ See CCLLC's (1) Motion To Quash Service Of Process, And (II) Motion To Dismiss For Lack
`Of Personal Jurisdiction And Improper Venue And For Failure To State A Claim Upon Which
`Relief Can Be Granted Or, In The Alternative, To Transfer Case To The Eastern District Of
`Louisiana, And Supporting Memorandum Of Law, which was filed by CCLLC in the District
`Court Action on June 23, 2004, a copy of which is attached hereto as Exhibit “A” and
`incorporated herein by reference.
`
`2 See Black’s, Dictionary ofLaw, Fifih Edition: “At issue. Whenever the parties come to a point
`in the pleadings which is affirmed on one side and denied on the other, they are said to be at
`issue.
`
`GARBETT, BRONSTEIN, STIPHANY 6. ALLEN, P.A., ATTORNEYS AT LAW
`80 SOUTHWEST EIGHTH STREET, SUITE 3 IOO, MIAMI, FLORIDA 33l3O 0 TELEPHONE (305) 579-OOIZ
`
`

`
`
`
`Serial No. 78/1 94, 953
`
`Opposition No. 91160236
`
`TRADEMARK
`
`fatally defective. Until Core files an action against CCLLC in a state whose courts can properly
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`assert in personam jurisdiction over CCLLC, and until CCLLC is properly served with process,
`
`it is self evident that no proper "pending case" exists, as required by 37 C.F.R. § 2.117 and
`
`TBMP § 510.
`
`Indeed, any contrary interpretation of 37 C.F.R. § 2.117 and TBMP § 51.0 would
`
`enable a party seeking to indefinitely delay TTAB proceedings for tactical reasons, such as Core
`
`in this case,
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`to “manipulate the system,” and render the efficiency of a TTAB proceeding
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`essentially a nullity, by simply filing a bogus action in an improper forum and never properly
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`serving process upon the Defendant.
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`It is axiomatic that district court actions should not be used
`
`to improperly delay administrative proceedings. See Goya Foods, Inc. v. Tropicana Products,
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`Inc., 666 F.Supp. 585, 588 (S.D.N.Y. 1987) ("The Declaratory Judgment Act may not be used to
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`unnecessarily disrupt registration proceedings pending in the Patent and Trademark Office").
`
`CONCLUSION
`
`There is no good cause to further delay the resolution of these proceedings. For the
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`foregoing reasons, Core's Motion To Suspend must be denied.
`
`GARBETT, BRONSTEIN, STIPHANY 5. ALLEN, P.A., ATTORNEYS AT LAW
`80 SOUTHWEST EIGHTH STREET. SUITE 3 I00, MIAMI, FLORIDA 33I3O 0 TELEPHONE (305) 579-OOIZ
`
`

`
`
`
`Serial No. 78/194, 953
`
`Opposition No. 91160236
`
`Dated: June 24, 2004.
`
`TRADEMARK
`
`Respectfully submitted,
`
`GARBETT, BRONSTEIN, STIPHANY
`& ALLEN, P.A.
`
`Attorneys for Opposer
`Columbus Communities, LLC
`80 s.w. 8”‘ Street, Suite 3100
`Miami, FL 33130
`
`Telephone: (305) 536-8885
`Telecopier: (305) 579-4722
`
`
`
`0. 342513
`1orida.Bar
`Elio F. Martinez, Jr.
`Florida Bar No. 501158
`
`GARBETT, BRONSTEIN, STIPHANY & ALLEN, F’.A., ATTORNEYS AT LAW
`80 SOUTHWEST EIGHTH STREET, SUITE 3100, MIAMI, FLORIDA 33|3O 0 TELEPHONE (305) 579-0012
`
`

`
`Serial No. 78/1 94, 953
`
`Opposition No. 91 1 60236
`
`TRADEMARK
`
`CERTIFICATE OF FEDEX MAILING
`
`I hereby certify that the original COLUMBUS COMMUNITIES LLC'S RESPONSE IN
`
`OPPOSITION TO CORE COMMUNITES, LLC'S MOTION TO SUSPEND PROCEEDINGS
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`was forwarded for filing to the Commissioner for Trademarks, 2900 Crystal Drive, Arlington,
`
`VA 22202 by FedEx on June 24, 2004.
`
`CERTIFICATE OF SERVICE
`
`I hereby certify true and correct copies of the foregoing COLUMBUS COMMUNITIES
`
`LLC'S RESPONSE IN OPPOSITION TO CORE COMMUNITES, LLC'S MOTION TO
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`SUSPEND PROCEEDINGS was served upon counsel for Applicant, Core Communities, LLC,
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`by depositing copies in the United States Mail with First Class postage affixed thereon on June
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`24, 2004, addressed as follows:
`
`Deborah Tellerrnan Berkowitz, Esq.
`Ruden, McClosky, Smith,
`Schuster & Russell
`Suite 1500
`200 E. Broward Blvd.
`Ft. Lauderdale, FL 33301
`
`Jay B. Shapiro, Esq.
`Steams Weaver Miller Weissler
`Alhadeff & Sitterson, P.A.
`Suite 2200 Museum Tower
`150 EastF1agler Street
`Miami, FL 33130
`
`
`
`GARBETT, BRONSTEIN. STIPHANY IS. ALLEN. P.A., ATTORNEYS AT LAW
`80 SOUTHWEST EIGHTH STREET. SUITE 3 I00, MIAMI. FLORIDA 33 I30 I TELEPHONE (305) 579-OOIZ
`
`

`
`
`
`EXHIBIT A
`
`

`
`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF FLORIDA
`
`CORE COMMUNITIES, LLC,
`
`Case No. 04-21098-CIV-MORENO
`
`Magistrate Judge Garber
`
`Plaintiff,
`
`v.
`
`COLUMBUS COMMUNITIES LLC,
`
`Defendant.
`
`/
`
`COLUMBUS COMMUNITIES LLC'S (1) MOTION TO QUASH SERVICE
`OF PROCESS, AND (II) MOTION TO DISMISS FOR LACK OF PERSONAL
`JURISDICTION AND IMPROPER VENUE AND FOR FAILURE TO
`
`STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED OR, IN THE
`
`ALTERNATIVE, TO TRANSFER CASE TO THE EASTERN DISTRICT OF
`LOUISIANA AND SUPPORTING MEMORANDUM OF LAW
`
`Pursuant to Rules l2(b)(2), (3), (5) and (6) of the Federal Rules of Civil Procedure, and
`
`for the reasons set forth in the following Memorandum of Law and in the supporting Affidavits
`
`of Mark J. Jeansonne and James E. Livingston, which have been filed contemporaneously
`
`herewith, Defendant, Columbus Communities LLC ("CCLLC") moves to (i) quash service of
`
`process upon it, and (ii) dismiss Plaintiffs, Core Communities LLC ("Core"), Complaint for lack
`
`of personal jurisdiction, improper venue and failure to state a claim upon which relief can be
`
`granted, or, alternatively, for the entry of an Order transfening this case to the United States
`
`District Court for the Eastern District of Louisiana.
`
`MEMORANDUM OF LAW
`
`Service of process upon CCLLC was defective and should be quashed by the Court.
`
`Furthermore, the exercise ofjurisdiction by this Court over CCLLC would violate Fla. Stat. §
`
`48.193 (“F1orida’s Long Arm Statute”) and the Due Process Clause of the Fourteenth
`
`GARBETT, BRONSTEIN. STIPHANY 5. ALLEN, P.A., ATTORNEYS AT LAW
`80 SOUTHWEST EIGHTH STREET, SUITE 3 IOO, MIAMI, FLORIDA 33|3O 0 TELEPHONE (305) 579-OOIZ
`
`

`
`1
`
`an)
`
`Case No. 04-21098-CIV-MORENO
`
`Amendment to the United States Constitution. Venue is also improper in the Southern District of
`
`Florida, and the Complaint fails to state a claim upon which relief can be granted. Therefore, the
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`Complaint should be dismissed. Alternatively, this action should be transferred to the United
`
`States District Court for the Eastern District of Louisiana pursuant to 28 U.S.C. §§ l404(a) and
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`1406(a).
`
`I.
`
`FACTUAL BACKGROUND RELEVANT TO THE SUBJECT MOTION
`
`A.
`
`CCLLC's Background And Activities
`
`CCLLC is a Mississippi limited liability company with its principal place of business in
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`New Orleans, Louisiana.
`
`(See Affidavit of James E. Livingston at 1] 2, attached hereto as Ex. 1.)
`
`CCLLC is the owner of real property situated in Biloxi, Mississippi (about 90 miles from New
`
`Orleans, Louisiana), which is being developed into a residential community under the trade name
`
`and service mark TRADITIONS“ and TRADITION & Design“.
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`(See Ex. 1 at 111] 3, 7.)
`
`CCLLC began marketing its residential development in Biloxi under the trade name and
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`service mark TRADITIONSM and TRADITION & Designs“ in early 2000. CCLLC's business
`
`records in connection with this endeavor are principally situated in Biloxi, while additional
`
`business records are maintained in New Orleans.
`
`(See Ex.
`
`1 at 1} 10.) CCLLC's managers,
`
`members and employees are all situated in either Biloxi or New Orleans. (See Ex. 1 at ‘ll 7.)
`
`CCLLC's contact with the State of Florida is limited and incidental, at best. CCLLC is
`
`neither registered nor licensed to conduct business in the State of Florida.
`
`(See Ex.
`
`1 at 1] 4.)
`
`CCLLC has not sold any real or intangible property in the State of Florida. (See Ex.
`
`1 at 1| 5.)
`
`CCLLC does not maintain any subsidiaries or affiliates in the State of Florida. (See Ex.
`
`1 at 1| 6.)
`
`CCLLC does not have any managers, members or employees who reside in the State of Florida.
`
`2
`
`GARBETT, BRONSTEIN. STIPHANY 5. ALLEN. P.A.. ATTORNEYS AT LAW
`50 SOUTHWEST EIGHTH STREET. SUITE 3100. MIAMI, FLORIDA 33|3O 0 TELEPHONE (305) 579<OO|2
`
`

`
`m
`
`(\
`
`Case No. 04-21098-CIV-MORENO
`
`(See Ex. 1 at 1] 7.) CCLLC does not maintain a telephone number in the State of Florida. (See
`
`Ex. 1 at 1] 8.) CCLLC does not maintain a bank account in the State of Florida. (See Ex.
`
`1 at 1]
`
`9.) CCLLC does not maintain any accounts or records in the State of Florida. (See Ex. 1 at 1] 10.)
`
`CCLLC does not own any real, personal or intangible property in the State of Florida. (See Ex. 1
`
`at 1] 11.) CCLLC has not been sued in any other action within the State of Florida. (See Ex. 1 at
`
`1] 12.) CCLLC has not filed any actions within the State of Florida. (See Ex. 1 at 1] 13.) CCLLC
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`has not purchased, and does not own, any interest in any Florida corporation or business. (See
`
`Ex. 1 at 1] 14.) CCLLC is not engaged in any type of business venture located within the State of
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`Florida. (See Ex. 1 at 1] 15.) CCLLC does not store any goods or supplies in the State of Florida.
`
`(See Ex. 1 at 1] 16.) In summary, CCLLC's business activities have always been conducted from
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`Mississippi and New Orleans, Louisiana, not from the State of Florida. (See Ex. 1 at 1] 17.)
`
`B.
`
`The Background And History Of Core's Complaint
`
`In March, 2003, CCLLC filed with the United States Patent and Trademark Office in
`
`Washington, D.C. ("PTO") a service mark application for TRADITION & Designs” (PTO Serial
`
`No. 76498957) for real estate related services. CCLLC listed in its service mark application a
`
`first use date of January 31, 2000, when CCLLC first began marketing its residential community
`
`in Biloxi under the trade name and service mark TRADITIONS“ and TRADITION & Designs“.
`
`CCLLC subsequently discovered that Core had filed two service mark applications for
`
`real estate related services which also featured the word "TRADITION" (PTO Serial Nos.
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`78194953 and 78341024). Core's applications reflected first use dates of February 18, 2003,
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`more than three (3) years after CCLLC's first use of the trade name and service mark
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`TRADITIONS” and TRADITION & Designs“. Because CCLLC's use predated Core's, on or
`
`3
`
`GARBETT, BRONSTEIN, STIPHANY 5. ALLEN. P.A., ATTORNEYS AT LAW
`80 SOUTHWEST EIGHTH STREET, SUITE 3 I00. MIAMI. FLORIDA 33:30 - TELEPHONE (305) 579-OOIZ
`
`

`
`Case No. 04-21098-CIV-MORENO
`
`about February 20, 2004, CCLLC served Core with a letter demanding, inter alia, that Core
`
`abandon its efforts to register the two "TRADITION" registrations with the PTO, and cease and
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`desist from all further use of "TRADITION" in connection with real estate related services.
`
`(See
`
`Complaint, Ex. G.)
`
`Despite CCLLC's prior use of TRADITIONS“ and TRADITION & Designs“, Core
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`refused to agree to abide by the demands in CCLLC's letter. CCLLC was therefore compelled to
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`file a formal Notice of Opposition (Opposition No. 91160236) with the PTO to Core's first
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`app1ication.1
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`Core responded to CCLLC's Notice of Opposition by filing the present action for
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`declaratory judgment in Florida, where Core is situated, but where CCLLC has no contacts
`
`sufficient to maintain personal jurisdiction over CCLLC. Core's apparent goal
`
`is to thwart
`
`CCLLC's efforts to oppose Core's service mark application with the PTO, as evidenced by Core's
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`filing of a May 12, 2004 motion with the PTO seeking to suspend the PTO proceedings pending
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`this Court's ruling on Core's Complaint.
`
`C.
`
`Core's Improper And Defective Service Of The Complaint
`
`In its rush to thwart CCLLC's efforts to oppose its service mark application before the
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`PTO, Core failed to effect proper service of process upon CCLLC. As indicated above, CCLLC
`
`is a Mississippi
`
`limited liability company, and the Mississippi Secretary of State lists its
`
`registered agent as attorney Gerald Blessey, whose offices are situated in Mississippi. (See
`
`Affidavit of Mark J. Jeansonne at 1] 2, attached hereto as Ex. 2.)
`
`Instead of properly serving
`
`CCLLC's registered agent, however, on May 17, 2004 Core's Process Server delivered a
`
`' The time is not yet ripe for filing a Notice of Opposition with the PTO to Core's second service mark application.
`4
`
`GARBETT, BRONSTEIN, STIPHANY 25. ALLEN. P.A., ATTORNEYS AT LAW
`50 SOUTHWEST EIGHTH STREET. SUITE 3 IOO, MIAMI. FLORIDA 33|3O 0 TELEPHONE (305) 579<OOl2
`
`

`
`Case No. 04-21098-CIV—MORENO
`
`Summons and Complaint to New Orleans attorney Mark J. Jeansonne, who shares offices in New
`
`Orleans with CCLLC, but who is not, and never has been, a registered agent, manager, director,
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`officer, member, employee or partner of CCLLC, and who was not authorized to accept service
`
`of process on behalf of CCLLC.
`
`(See Ex. 2 at 111] 2, 4-6).
`
`11.
`
`SERVICE OF PROCESS SHOULD BE QUASHED.
`
`A.
`
`Service Under Fed.R.Civ.P. 4.
`
`Fed.R.Civ.P. 4(e) provides, in relevant portion, that service upon an individual Defendant
`
`within a judicial district of the United States is effected "pursuant to the law of the state in which
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`the district court is located, or in which service is effected. . .".
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`Fed.R.Civ.P. 4(h) provides, in relevant portion, that service upon a corporate Defendant
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`is effected:
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`in a judicial district of the United States in the manner prescribed for individuals
`by subdivision (e)(l), or by delivering a copy of the summons and of the
`complaint to an officer, a managing or general agent, or to any other agent
`authorized by appointment or by law to receive service of process[.]
`
`Core attempted to serve CCLLC by delivering a Summons and Complaint to attorney
`
`Mark J. Jeansonne, who shares offices with CCLLC in New Orleans, Louisiana, but who is not a
`
`registered agent, manager, director, officer, member, employee or partner of CCLLC. Pursuant
`
`to Fed.R.Civ.P. 4(e) and (h), service of process upon CCLLC can only be properly effected
`
`pursuant to the laws of Florida (where the present lawsuit was filed) or the laws of Louisiana
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`(where service was attempted). Service upon CCLLC, however, was not properly made under
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`the laws of either Florida or Louisiana.
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`B.
`
`Service Of Process Fails Under Florida Law
`
`GARBETT, BRONSTEIN, STIPHANY 5. ALLEN. F‘.A,. ATTORNEYS AT LAW
`so SOUTHWEST EIGHTH STREET. SUITE 3 IOO. MIAMI, FLORIDA 33:30 - TELEPHONE (305) 579-OOIZ
`
`

`
`Case No. O4-21098-CIV-MORENO
`
`Service of process upon a foreign limited liability company in Florida must be effected
`
`pursuant to Fla. Stat. § 608.5101, which states, in relevant portion:
`
`(1) The registered agent of a foreign limited liability company... is the limited liability
`company's agent for service of process. ..
`
`(2) A foreign limited liability company may be served by registered or certified mail,
`return receipt requested, addressed to the secretary of the foreign limited liability
`company at its principal office shown in its application for a certificate of authority or in
`its most recent annual report if the foreign limited liability company:
`
`(a) Has no registered agent or its registered agent cannot with reasonable diligence
`be served...
`
`Process against any foreign limited liability company may also be served in
`(4)
`accordance with chapter 48 or chapter 49.
`
`Fla. Stat., § 608.463, also states, in relevant portion:
`
`(1) Process against a limited liability company may be served:
`
`(a)
`
`In accordance with chapter 48 or chapter 49, as if the company were a
`partnership.
`
`(b) Upon the registered agent at the agent's street address.
`
`Fla. Stat.,
`
`§ 48.042, which establishes the method for service of process upon a
`
`partnership, states, in relevant portion:
`
`(1) Process against a partnership shall be served on any partner and is valid as if served
`on each individual partner. If a partner is not available during regular business hours to
`accept service on behalf of the partnership, he or she may designate an employee to
`accept such service...
`
`(3) Process against a foreign limited partnership may be served on any general partner
`found in this state or any agent for service of process specified in its application for
`registration and is as valid as ifserved on each individual member ofthe partnership...
`
`GARBETT. BRONSTEIN. STIPHANY as ALLEN, P.A.. ATTORNEYS AT LAW
`so SOUTHWEST EIGHTH STREET, SUITE 3100. MIAMI. FLORIDA 33|3O - TELEPHONE (305) 579~ooI2
`
`

`
`Case No. O4-21098-CIV-MORENO
`
`CCLLC was not served in accordance with the provisions of Fla. Stat. §§ 608.5101,
`
`608.463 or 48.042.2 Accordingly, CCLLC was not properly served under Florida law.
`
`C.
`
`Service Of Process Fails Under Louisiana Law.
`
`Service of process upon limited liability companies under Louisiana law is governed by
`
`C.C.P. Art. 1263, which authorizes service of process by the following methods:
`
`A.
`
`B.
`
`Service of citation or other process on a domestic or foreign limited
`liability company is made by personal service on any one of its agents for
`service of process.
`
`If the limited liability company has failed to designate an agent for service
`of process, if there is no registered agent by reason of death, resignation or
`removal, or if the person attempting to make service certifies that he is
`unable, after due diligence, to serve the designated agent, service of the
`citation or other process may be made by any of the following methods:
`
`(1)
`
`(2)
`
`Personal service on any manager if the management of the limited
`liability company is vested in one or more managers or
`if
`management is not so vested in managers, then on any member.
`
`Personal service on any employee of suitable age and discretion at
`any place where the business of the limited liability company is
`regularly conducted.
`
`As indicated above, attorney Mark J. Jeansonne is neither a registered agent, manager,
`
`member nor employee of CCLLC. Accordingly, CCLLC was not properly served under
`
`Louisiana law.
`
`D.
`
`Service Of Process Should Be
`
`uashed.
`
`By failing to properly serve CCLLC in accordance with the laws of Florida or Louisiana,
`
`Core has failed to comply with the requirements of Fed.R.Civ.P. 4. Accordingly, service of
`
`process upon CCLLC should be quashed.
`
`2 Fla. Stat. Chapter 49 deals with constructive service of process, which was also not effected upon CCLLC.
`7
`
`GARBETT, BRONSTEIN. STIPHANY 5. ALLEN. F’.A.. ATTORNEYS AT LAW
`80 SOUTHWEST EIGHTH STREET. SUITE 3100. MIAMI, FLORIDA 33|3O 0 TELEPHONE (305) 579-OO|2
`
`

`
`Case No. 04-21098-CIV-MORENO
`
`III.
`
`THIS COURT LACKS JURISDICTION OVER CCLLC.
`
`A.
`
`Core Cannot Meet Its Burden Of Establishing
`Personal Jurisdiction Over CCLLC.
`
`The determination of personal jurisdiction by this Court over CCLLC involves a two-part
`
`inquiry. First, it must be determined whether the Complaint alleges sufficient jurisdictional facts
`
`to bring CCLLC within the ambit of Florida’s Long Arm Statute. The mere proof of any one of
`
`the several circumstances enumerated in Florida’s Long Arm Statute as the basis for obtaining
`
`personal jurisdiction of non-residents,
`
`like CCLLC, does not automatically satisfy the Due
`
`Process requirement of sufficient minimum contacts. See Venetian Salami Co. v. Parthenais,
`
`554 So. 2d 499, 501 (Fla. 1989). Second, even if the allegations of the Complaint are within the
`
`ambit of the Florida Long Arm Statute, it must still be determined whether or not the exercise of
`
`personal jurisdiction over CCLLC by this Court is consistent with Due Process. See Hartcourt
`
`Cos. v. Hague, 817 So. 2d 1067, 1070 (Fla. Dist. Ct. App. 5th Dist. 2002), quoting Venetian
`
`Salami, 554 So. 2d at 502. Core bears the burden of pleading and ultimately proving the
`
`existence of personal jurisdiction over CCLLC. See Milligan Elec. Co. v. Hudson Constr. Co.,
`
`886 F. Supp. 845, 848~5O (N.D. Fla. 1995) (citing to and relying on Oriental Imports & Exports,
`
`Inc. v. Maduro & Curiel's Bank, NV, 701 F.2d 889, 890-91 (11th Cir. 1983) and applying
`
`Florida law).
`
`F lorida’s Long Arm Statute must be strictly construed and the Florida Supreme Court has
`
`made it clear that Florida’s Long Arm Statute does not extend to the limits of due process. See
`
`Milligan Elec. Co., supra, 886 F. Supp. at 848 (citing to Venetian Salami, 554 So. 2d at 500).
`
`This Court does not have jurisdiction to adjudicate CCLLC’s rights unless all the requirements of
`
`both subject matter and personal jurisdiction have been established. See Duplantier v. United
`8
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`GARBETT. BRONSTElN. STIPHANY 5. ALLEN, P.A.. ATTORNEYS AT LAW
`so SOUTHWEST EIGHTH STREET, sum: 3 I00, MIAMI, FLORIDA 33:30 . TELEPHONE (305) 57900.2
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`Case No. 04-21098—CIV-MORENO
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`States, 606 F.2d 654 (Sm Cir. 1979). Thus, Core’s failure to establish personal jurisdiction over
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`CCLLC in this action is fatal to its case and the Complaint must be dismissed for lack of
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`personal jurisdiction over CCLLC.
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`B.
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`Core Has Failed To Plead Facts Sufficient To
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`Establish Personal Jurisdiction Over CCLLC.
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`This Court is first required to determine whether Core’s Complaint sufficiently alleges a
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`jurisdictional predicate over CCLLC.
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`It is axiomatic that, if a Plaintiff fails to satisfy its burden
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`to plead facts establishing jurisdiction over a foreign defendant, the Court should dismiss the
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`action. See Milligan Elec. C0., supra, 886 F. Supp. at 848-849.
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`Here, Core has not even attempted to plead the requisite jurisdictional requirements. For
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`example, Core has not even identified Florida’s Long Arm Statute, the only statutory basis upon
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`which Core may assert this Court’s personal jurisdiction over CCLLC, in the Complaint.
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`And, with respect to establishing venue, Core merely asserts that "venue is proper...
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`under 28 U.S.C. § l39l(b) and (c)" but fails to allege any facts supporting this assertion. This,
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`too, is insufficient to establish this Court’s personal jurisdiction over CCLLC.
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`Core broadly alleges that "CCLLC has taken actions within this district sufficient to
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`constitute purposeful availment of this forum's privileges and protections, including the sending
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`of a cease-and-desist
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`letter
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`to Core, which letter originated from within this district.
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`Consequently [CCLLC] is subject
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`to personal jurisdiction in this district." However, Core
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`wholly fails to specify what “actions,” other than sending the cease-and-desist
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`letter, Core
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`contends would subject CCLLC to jurisdiction in Florida. As for CCLLC’s sending of a cease-
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`and-desist letter to Core in Florida, the law is crystal clear that merely sending such a letter is, by
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`itself, insufficient to subject CCLLC to thejurisdiction of this Court. See Geodetic Services, Inc.
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`GARBETT, BRONSTEIN. STIPHANY 5 ALLEN, P.A., ATTORNEYS AT LAW
`so SOUTHWEST EIGHTH STREET, sum: 3 I00, MIAMI, FLORIDA 33130 . 1-g._gpHoNg (305, 57900.2
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`Case No. 04-21098—CIV-MORENO
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`v. Metronor AS, 2000 WL 1027222 (M.D. Fla. 2000), (Court held that "sending cease and desist
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`letters to an alleged [trademark] infringer [in Florida] do (sic.) not support a finding that a
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`defendant engaged in a general course of business activity in [Florida]"); Insight Instruments,
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`Inc. v. A. —— Advanced Visual Instruments, Inc., 44 F.Supp.2d 1269, 1272 (M.D. Fla. 1999)
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`(Court held that "the mailing of cease and desist letters threatening a patent infringement suit,
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`without more, is of insufficient quality and degree to be considered ‘transacting business’ in the
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`forum state"). Because of the paucity of any allegations in the Complaint establishing any basis
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`for personal jurisdiction, CCLLC and the Court are forced to speculate regarding Core’s claim
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`that the Court may exercise personal jurisdiction over CCLLC. Such scant allegations fall far
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`short of meeting Core’s burden of establishing personal jurisdiction over CCLLC.
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`Core has failed to even identify the statutory basis for its claim to jurisdiction, much less
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`“sufficient jurisdictional facts to bring the action within the ambit of Section 48.l93.” See
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`Venetian Salami Co., 564 So. 2d at 500. Consequently, Core’s Complaint should be dismissed.
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`C.
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`CCLLC Is Not Subject To The Jurisdiction Of The Courts Of Florida.
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`Florida’s Long Arm Statute provides in relevant part that:
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`(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:
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`(a) Operating, conducting, engaging in or carrying on a business
`venture in this state or having an office or agency in this state.
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`(b) Committing a tortious act within this state.
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`(g) Breaching a contract in this state by failing to perform acts
`required by the contract to be performed in this state.
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`GARBETT. BRONSTEIN. STIPHANY s ALLEN. P.A., ATTORNEYS AT LAW
`so SOUTHWEST EIGHTH STREET. SUITE 3100. MIAMI, FLORIDA 33130 - TELEPHONE (305) 579-OOIZ
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`Case No. O4-21098-CIV-MORENO
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`(2) A defendant who is engaged in substantial and not isolated
`activity within this state, whether such activity is wholly interstate,
`intrastate, or otherwise, is subject to the jurisdiction of the courts
`of this state, whether or not the claim arises from that activity.
`(Emphasis added).
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`Florida’s Long Arm Statute is an exclusive, not an inclusive, statute. Therefore, any acts
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`not specifically enumerated in Florida’s Long Arm Statute, which may give rise to a cause of
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`action do not submit a foreign defendant to jurisdiction in Florida. See McRae v. J.D./M.D., Inc.,
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`511 So. 2d 540 (Fla. 1987). Core bears the burden of establishing the applicability of Florida’s
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`Long Arm Statute. Oriental Imports & Exports, Inc., 701 F.2d at 890-91. Here, in assessing
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`whether Core has met its burden, the Court must strictly construe Florida’s Long Arm Statute.
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`Id.; see also Sculptclzair, Inc. v. Century Arts, 94 F.3d 623 (11th Cir. 1996).
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`None of the above-referenced limited Florida statutory jurisdictional grounds exist in the
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`case at bar. Core does not allege in its Complaint that CCLLC is “operating, conducting,
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`engaging in or carrying on a .
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`.
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`. business venture” in Florida or that CCLLC maintains offices or
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`employees in Florida. Further, as the Affidavit of James E. Livingston makes clear, CCLLC is
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`not engaged in any such business venture and does not have office or agency in Florida. See
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`Ex. 1. Core likewise does not allege that CCLLC has ‘either committed a tortious act or breached
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`a contract within this state.
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`Core’s sole specific jurisdictional allegation, that CCLLC retained counsel in Florida, is
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`wholly insufficient to establish personal jurisdiction over CCLLC in this action. Florida law is
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`clear that merely entering into a contract with a non-resident does not satisfy the minimum
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`contacts required by due process.
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`See Hartcourt, 817 So.2d at 1071 (quoting Christus St.
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`11
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`GARBETT, BRONSTEIN, STIPHANY 5. ALLEN, F’.A.. ATTORNEYS AT LAW
`so SOUTHWEST EIGHTH STREET. sun’: 3100, MIAMI, FLORIDA aaiao . TELEPHONE (305, 57900.2
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`Case No. 04-21098-CIV-MORENO
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`Joseph's Health Sys. v. Witt Biomedical Corp., 805 So. 2d 1050, 1055 (Fla. 5th DCA 2002)
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`(citing, Quality Christmas Trees Co. v. Florico Foliage, 689 So. 2d 1222, 1223 (Fla. 5”‘ DCA
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`1997)).
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`Finally, Core has failed to allege that CCLLC “engaged in substantial activity in Florida.”
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`See Fla. Stat. § 48.193(2). Moreover, the Affidavit of James E. Livingston establishes that
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`CCLLC is not engaged in substantial activity within the State of Florida. See Ex. 1. Here, there
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`are no facts alleged or available to establish that CCLLC was operating, conducting, engaging in,
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`or carrying on any form of business located in Florida. Accordingly, Core’s Complaint must be
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`dismissed.
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`D.
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`The Exercise Of Personal Jurisdiction Over CCLLC Would
`Violate The Due Process Clause of The United States Constitution.
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`Even if CCLLC's alleged activities (i.e., retaining Florida counsel and sending a cease-
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`and-desist letter) fall within Florida’s Long Arm Statute, Core must still prove that the exercise
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`of personal jurisdiction over CCLLC by a Florida court comports with Constitutional Due
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`Process. To determine whether Core has met this burden, the Court must apply a two-step
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`analysis. First, the Court must determine whether CCLLC has established sufficient minimum
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`contacts with Florida.
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`Second,
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`the Court must determine whether the exercise of personal
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`jurisdiction over CCLLC by a Florida court would offend traditional notions of fair play and
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`substantial justice.
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`See Sculptchair, supra, 94 F.3d at 632.
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`For the exercise of personal
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`jurisdiction to comport with Due Process, a nonresident defendant like CCLLC must have
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`sufficient minimum contact with the forum resulting from an affirmative act on the part of the
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`nonresident. Int '1 Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95
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`(1945). When evaluating a nonresident’s contacts with a foreign state, a court must determine
`12
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`GARBETT. BRONSTEIN. STIPHANY is ALLEN. P.A.. ATTORNEYS AT LAW
`ao SOUTHWEST EIGHTH STREET. SUITE 3 IOO. MIAMI. FLORIDA 33430 - TELEPHONE (305) 579-OOIZ
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`Case No. O4-21098-CIV-MORENO
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`whether the nonresident has purposefully availed himself to the privileges of conducting
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`activities within the foreign state, thus invoking the protection of its laws. The Defendant’s
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`contact with the forum must be such that he should reasonably expect to be haled into court in
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`that state. See Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1240, 2 L. Ed. 2d 1283
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`(1958).
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`There are two types of personal jurisdiction, specific and general. When a court exercises
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`personal jurisdiction over a defendant based upon contacts with the forum related to the
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`particular controversy the court is exercising specific jurisdiction. See Helicopteros Nacionales
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`de Columbia, S. A. v. Hall, 466 U.S. 408, 104 S. Ct. 1868, 1872, 80 L. Ed. 2d 404 (1984).
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`General jurisdiction, which is not predicated upon facts giving rise to a particular action, may be
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`exercised only where a defendant has engaged in “continuous and systematic” activities within
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`the forum state.
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`Id. at 415.
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`It is u