Case 5:13-cv-00248-ACC-PRL Document 51 Filed 11/25/14 Page 1 of 29 PageID 424
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`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`OCALA DIVISION
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`JOHN J. TURI,
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`v.
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`Plaintiff,
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`Case No: 5:13-cv-248-Oc-22PRL
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`THOMAS STACEY, STACEY
`INTERNATIONAL, STACEY
`PUBLISHING LTD, STRUAN
`SIMPSON and KEITH YOUNG
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`Defendants.
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`REPORT AND RECOMMENDATION1
`Pending before the Court is the pro se Plaintiff’s Motion for Default Judgment. (Doc. 39).
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`Upon a review of this Court’s jurisdiction, I submit that the pro se Defendants are not subject to
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`personal jurisdiction here and, therefore, I recommend that the Plaintiff’s motion for default
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`judgment be DENIED and this case DISMISSED.
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`I. BACKGROUND
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`On May 29, 2013, Plaintiff initiated this action for alleged copyright infringement, breach
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`of contract, fraud, and unjust enrichment arising from a publishing contract (the “Agreement”) for
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`Plaintiff’s book, England’s Greatest Spy, Eamon deValera. (Doc. 1).
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`In response, Defendants appeared for the limited purpose of moving to dismiss the
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`complaint for lack of personal jurisdiction, failure to properly serve them, and forum non
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`1 Specific written objections may be filed in accordance with 28 U.S.C. § 636, and Rule 6.02, Local Rules,
`M.D. Fla., within fourteen (14) days after service of this report and recommendation. Failure to file timely
`objections shall bar the party from a de novo determination by a district judge and from attacking factual
`findings on appeal.
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`Case 5:13-cv-00248-ACC-PRL Document 51 Filed 11/25/14 Page 2 of 29 PageID 425
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`conveniens. (Doc. 3). The Court agreed that Plaintiff had not properly served Defendants
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`insofar as he failed to comply with the Hague Service Convention.2 As a result, the Court quashed
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`service of process as to all Defendants and denied the motion to dismiss without prejudice. (Doc.
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`13). Plaintiff was granted leave to serve Defendants in a manner consistent with the Hague
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`Service Convention and the Court’s directives, which it appears he did.3 Id.
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`After the Defendants failed to timely respond to the served Complaint, Plaintiff sought,
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`and received, the entry of a Clerk’s default. (See Doc. 37). Plaintiff now seeks a default
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`judgment pursuant to Fed. R. Civ. P. 55(b). (Doc. 39). Before simply granting Plaintiff’s
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`motion, I reviewed the case to consider this Court’s jurisdiction and determined that significant
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`concerns existed with regard to personal jurisdiction over these foreign Defendants. Accordingly,
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`I directed Plaintiff to show cause as to why his motion for default judgment should not be denied
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`and this case dismissed for lack of personal jurisdiction. (Doc. 41). Plaintiff (Doc. 45) and the
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`individual Defendants, Stacey, Simpson, and Young (Docs. 40, 46, & 47) have now responded.4
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`II. LEGAL STANDARDS
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`2 The text of the Convention, practical guides for adhering to it, and other helpful documents are available
`online. See “Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or
`Commercial Matters. http://www.hcch.net/index_en.php?act=conventions.text&cid=17.
`3 After moving for the appointment of a special process server, Plaintiff filed documents attesting to be
`proof of service upon Defendants executed on February 3, 2014. (Docs. 26-30). These documents
`contain certificates that as to Defendants Keith Young, Thomas Stacey, Stacey International, and Stacey
`Publishing LTD: “[t]he documents were served by posting them through the Defendant’s letterbox,” a
`proper method of service under Rule 6.3 (1)(c) of the Civil Procedure Rules of England and Wales. (Docs.
`26-29). As to Defendant Struan Simpson, the “[d]ocuments were served by leaving through the communal
`door of the address given.” (Doc. 30). The documents also bear a stamp reading, “Senior Courts of
`England and Wales Foreign Process Section.” Id.
`The Court directed Plaintiff to provide a written response addressing whether service of process
`was properly perfected upon each of the Defendants in accordance with the provisions of the Hague Service
`Convention. (Doc. 35). Plaintiff filed a response including the Affidavit of John Pierceall, the Court-
`appointed process server, who attested that Plaintiff properly perfected service. (Doc. 36, pp. 2-3).
`4 Plaintiff makes his claims against all the Defendants as if they are one and the same. While recognizing
`that Stacy Publishing LTD is a foreign corporation and has not appeared with counsel, each of the individual
`defendants are plead to be integral to that Defendant (as board members or owners) and so I consider the
`claims against all of the Defendants in the same manner in which they were plead.
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`To proceed in federal court, the court must have both subject matter jurisdiction and
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`personal jurisdiction. Indeed, federal courts are, as we know, courts of limited jurisdiction and,
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`therefore, have an obligation to inquire into their jurisdiction. See Kirkland v. Midland Mortgage
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`Co., 243 F.3d 1277, 1279-80 (11th Cir. 2001). “In a given case, a federal district court must have
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`at least one of three types of subject matter jurisdiction: (1) jurisdiction under a specific statutory
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`grant; (2) federal question jurisdiction pursuant to 28 U.S.C. § 1331; or (3) diversity jurisdiction
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`pursuant to 28 U.S.C. § 1332(a).” Baltin v. Alaron Trading, Corp., 128 F.3d 1466, 1469 (11th
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`Cir. 1997).
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`As to personal jurisdiction, “[a] court must dismiss an action against a defendant over
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`which it has no personal jurisdiction.” Verizon Trademark Servs., LLC v. Producers, Inc., 810 F.
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`Supp. 2d 1321, 1323–24 (M.D. Fla. 2011). Although federal trial courts normally face the issue
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`of personal jurisdiction on a motion to dismiss under Fed. R. Civ. P. 12(b)(2), courts may raise the
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`question sua sponte when deciding whether to enter a default judgment when the defendant has
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`failed to appear, since a default judgment entered against a defendant who is not subject to personal
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`jurisdiction is void. See Sys. Pipe & Supply, Inc. v. M/V Viktor Kurnatovskiy, 242 F.3d 322, 324
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`(5th Cir. 2001) (“a judgment entered without personal jurisdiction is void,” and “the district court
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`committed no error in raising the issue of personal jurisdiction sua sponte”); Williams v. Life Sav.
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`and Loan, 802 F.2d 1200, 1202 (10th Cir. 1986) (“We hold that a district court may not inquire
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`into its personal jurisdiction and dismiss a case sua sponte except when entering a default
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`judgment.”) (emphasis added). Indeed, this Court has an affirmative duty to examine its
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`jurisdiction over the parties when entry of judgment is sought against a party who has failed to
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`plead or otherwise defend. See Williams, 802 F.2d at 1203; In re Tuli, 172 F.3d 707, 712 (9th
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`Cir. 1999); cf. Sinoying Logistics Pte Ltd. v. Yi Da Xin Trading Corp., 619 F.3d 207, 213 (2d Cir.
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`Case 5:13-cv-00248-ACC-PRL Document 51 Filed 11/25/14 Page 4 of 29 PageID 427
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`2010) (“[W]e agree with our sister circuits that before a court grants a motion for default judgment,
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`it may first assure itself that it has personal jurisdiction over the defendant.”). Accordingly, before
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`the Court can address the merits of Plaintiff’s motion for default judgment, it must perform a
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`preliminary analysis as to whether it has jurisdiction to enter a default judgment against these non-
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`appearing British Defendants. I will now do that.
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`“[W]here the district court’s disposition as to the personal jurisdictional question is based
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`on affidavits and other written materials in the absence of an evidentiary hearing, a plaintiff need
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`only to make a prima facie showing that defendants are subject to personal jurisdiction.” Avocent
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`Huntsville Corp. v. Aten Int’l Co., 552 F.3d 1324, 1329 (Fed. Cir. 2008). Of course, a district
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`court must accept the uncontroverted allegations in the plaintiff’s complaint as true and resolve
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`any factual conflicts in the affidavits in the plaintiff’s favor. Id. A plaintiff must, however, plead
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`sufficient facts to establish a prima facie case of jurisdiction over the foreign defendant’s person.
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`Virgin Health Corp. v. Virgin Enters. Ltd., 393 F. App’x 623, 625 (11th Cir. 2010).
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`The district court must accept the facts alleged in a complaint as true, to the extent they are
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`uncontroverted. See Consol. Dev. Corp. v. Sherritt, Inc., 216 F.3d 1286, 1291 (11th Cir. 2000).
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`If a defendant sustains its burden of challenging a plaintiff’s allegations through affidavits or other
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`competent evidence, a plaintiff must substantiate the jurisdictional allegations in the complaint by
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`affidavits, testimony, or other evidence of its own. Future Tech. Today, Inc. v. OSF Healthcare
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`Sys., 218 F.3d 1247, 1249 (11th Cir. 2000). A plaintiff must do more than “merely reiterate the
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`factual allegations in the complaint.” Id. (quoting Prentice v. Prentice Colour, Inc., 779 F.Supp.
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`578, 583 (M.D. Fla. 1991)). Where the evidence conflicts, however, the district court must
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`construe all reasonable inferences in favor of a plaintiff. See PVC Windoors, Inc. v. Babbitbay
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`Beach Const., N.V., 598 F.3d 802, 810 (11th Cir. 2010). “If such inferences are sufficient to
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`Case 5:13-cv-00248-ACC-PRL Document 51 Filed 11/25/14 Page 5 of 29 PageID 428
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`defeat a motion for judgment as a matter of law, the court must rule for the plaintiff, finding that
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`jurisdiction exists.” Id.
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`“Whether the court has personal jurisdiction over a defendant is governed by a two-part
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`analysis.” Verizon Trademark Servs., 810 F. Supp. 2d at 1324. When jurisdiction is based on
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`diversity, Fed. R. Civ. P. 4(e) requires that the state long-arm statute determine the assertion of
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`jurisdiction. Id. Under this analysis, we look to Florida’s long-arm statute. See Fla. Stat. §
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`48.193. “When a federal court uses a state long-arm statute, because the extent of the statute is
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`governed by state law, the federal court is required to construe it as would the state’s supreme
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`court.” Lockard v. Equifax, Inc., 163 F.3d 1259, 1265 (11th Cir. 1998); see also Stubbs v.
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`Wyndham Nassau Resort & Crystal Palace Casino, 447 F.3d 1357, 1361 (11th Cir. 2006). Then,
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`if the state long-arm statute is satisfied, the court must analyze “whether the exercise of jurisdiction
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`over the defendant comports with the Constitution’s requirements of due process and traditional
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`notions of fair play and substantial justice.” Verizon Trademark Servs., 810 F. Supp. 2d at 1324;
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`Sculptchair, Inc. v. Century Arts, 94 F.3d 623, 626 (11th Cir. 1996).
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`Where a foreign defendant is not subject to personal jurisdiction in any state’s courts, Fed.
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`R. Civ. P. 4(k)(2) permits an exercise of jurisdiction grounded on an aggregation of the defendant’s
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`nationwide contacts, provided that two conditions are present. Consol. Dev. Corp., 216 F.3d at
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`1291. First, the plaintiff’s claims must arise under federal law; second, the exercise of jurisdiction
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`must be consistent with the Constitution and laws of the United States (which could be met if the
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`exercise of jurisdiction is found to otherwise comport with due process). Id.
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`The first condition is obviously satisfied if there is a federal claim. Because whether there
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`is a federal claim plead is also part of the court’s subject matter jurisdiction analysis, I turn to this
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`question first. If it is resolved against the Plaintiff (as I submit it is), then personal jurisdiction
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`under Rule 4(k)(2) can never be established.
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`III. DISCUSSION
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`A. Subject Matter Jurisdiction
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`1. Federal Question Jurisdiction
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`Plaintiff attempts to allege one cause of action arising under federal law, to wit: copyright
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`infringement. It is the sole claim that would support the Court’s federal question jurisdiction and
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`allow the Court to consider personal jurisdiction under Rule 4(k)(2).5 (Doc. 1, p. 5). See Stuart
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`Weitzman, LLC v. Microcomputer Res., Inc., 542 F.3d 859, 863 (11th Cir. 2008) (“Normally, of
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`course, the district court would certainly have subject matter jurisdiction over a copyright
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`infringement claim.”); see also Copyright Act of 1976, 17 U.S.C. §§ 101 et seq. (1976).
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`In considering whether a claim has been plead I note that “[a] pleading that states a claim
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`for relief must contain . . . a short and plain statement of the claim showing that the pleader is
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`entitled to relief.” Fed. R. Civ. P. 8(a)(2). While detailed factual allegations are not required,
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`“[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a
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`cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
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`v. Twombly, 550 U.S. 544, 555 (2007)). Indeed, “a complaint must contain sufficient factual
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`matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting
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`Twombly, 550 U.S. at 570). This is not to say that detailed factual allegations are required, but
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`Fed. R. Civ. P. 8 “demands more than an unadorned, the-defendant-unlawfully-harmed-me
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`accusation.” Id. at 678 (citing Twombly, 550 U.S. at 555). Mere recitals of the elements of a
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`claim, with conclusory allegations, “do not suffice:” “the tenet that a court must accept as true all
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`5 Plaintiff’s other claims—breach of contract, fraud, and unjust enrichment—arise under state law and do
`not confer subject matter jurisdiction on this Court.
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`of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. Further,
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`“where the well-pleaded facts do not permit the court to infer more than the mere possibility of
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`misconduct, the complaint has alleged–but it has not ‘show[n]’–‘that the pleader is entitled to
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`relief.’” Id. at 679 (citing Fed. R. Civ. P. 8(a)(2)).
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`In applying the principles of Ashcroft and Twombly the Court must “eliminate any
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`allegations in the complaint that are merely legal conclusions,” and then, “where there are well-
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`pleaded factual allegations, ‘assume their veracity and then determine whether they plausibly give
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`rise to an entitlement to relief.’” American Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290
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`(11th Cir. 2010) (quoting Iqbal, 556 U.S. at 679). In doing so, the Court can infer “‘obvious
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`alternative explanation[s],’ which suggest lawful conduct rather than the unlawful conduct the
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`plaintiff would ask the court to infer.” Id. (quoting Iqbal, 556 U.S. at 682).
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`Upon review of the parties’ pleadings and exhibits, the Court concludes that Plaintiff,
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`having granted Defendants a sole exclusive license to publish his book, lacks the standing required
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`to bring a claim of copyright infringement.6 Under the Copyright Act, “[a]ny of the exclusive
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`rights comprised in a copyright . . . may be transferred . . . and owned separately.” U.S. Naval
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`Inst. v. Charter Commc’ns, Inc., 936 F.2d 692, 695 (2d Cir. 1991) (citing 17 U.S.C. § 201(d)(2)).
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`In fact, “[t]he owner of any particular exclusive right is entitled, to the extent of that right, to all
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`of the protection and remedies accorded to the copyright owner by this title.” Id. An exclusive
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`license granted by the copyright owner constitutes a transfer of ownership of the copyright rights
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`conveyed in the license. Id. (citing 17 U.S.C. § 101) (“A ‘transfer of copyright ownership’ is an
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`assignment, mortgage, exclusive license, or any other conveyance . . . of a copyright or of any of
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`6 The Court disagrees with Plaintiff’s assertion that Defendants “admit copyright infringement.” (Doc.
`45, p. 2). While Defendants state there may have been an “apparent oversight” (Doc. 45, p. 45, 63) in
`paying royalties to Plaintiff, Defendants do not appear to have admitted to copyright infringement, nor does
`Plaintiff appear to have accused them of the same prior to this action.
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`the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect.
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`. . .”)); Wales Indus. Inc. v. Hasbro Bradley, Inc., 612 F.Supp. 510, 514 (S.D.N.Y. 1985).
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`Simply stated, copyright “[i]nfringement is the violation of an owner’s copyright interest
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`by a non-owner.” U.S. Naval, 936 F.2d at 695 (citing Cortner v. Israel, 732 F.2d 267, 271 (2d
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`Cir. 1984)). It is, therefore, “elementary that the lawful owner of a copyright is incapable of
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`infringing a copyright interest that is owned by him.” Id. Hence, an exclusive licensee of any of
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`the copyright rights, though it may breach the contractual obligations imposed by the license,
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`cannot be liable for infringing the copyright rights conveyed to it. Id. (citing Fantastic Fakes,
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`Inc. v. Pickwick Int’l, Inc., 661 F.2d 479, 483–84 (5th Cir. Unit B 1981) (“mere breach of covenant
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`may support a claim of damages for breach of contract but will not disturb the remaining rights
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`and obligations under the license including the authority to use the copyrighted material”)); see
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`also 3 M. Nimmer & D. Nimmer, Nimmer On Copyright, § 12.02 at 12–29 (1990) (“Once the
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`copyright owner grants an exclusive license of particular rights, only the exclusive licensee and
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`not his grantor may sue for later occurring infringements of such rights. Indeed, the licensor may
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`be liable to the exclusive licensee for copyright infringement if the licensor exercises rights which
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`have theretofore been exclusively licensed.”) (emphasis added).
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`Plaintiff submits the Agreement (or contract)7 as evidence of the parties’ obligations in
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`connection with publishing his book. (Doc. 45, p. 19). The Agreement contains a copyright
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`provision in Clause 2 which states “The Author [Plaintiff] hereby grants the Publishers
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`[Defendants] the sole exclusive license to publish the Work for the legal term of the copyright or
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`any extension thereof . . . .” Id. (emphasis added). The introductory language notes that, “where
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`the context so admits,” the Agreement will extend to the parties’ “successors and assigns.” Id.
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`7 Referred to as the “Contract” in Defendants’ filings.
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`Plaintiff does not provide any evidence to the Court that this Agreement was terminated,
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`rescinded, or expired.8 See Atlantis Info. Tech., GmbH v. CA, Inc., 485 F. Supp. 2d 224 (E.D.N.Y.
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`2007) (holding that the licensor’s grant of a license to the licensee to utilize the licensor’s
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`copyright, which was not terminated, precluded the licensor from asserting a copyright
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`infringement action). Instead, Plaintiff alleges multiple times that Defendants infringed his
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`copyright by selling his book without paying him royalties due. (See, e.g., Doc. 1, p. 5; Doc. 45,
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`p. 1, 7, & 10). As noted above, federal courts have concluded that it is “elementary” that the
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`lawful owner of a copyright is “incapable” of infringing a copying interest that is owned by him.
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`U.S. Naval, 936 F.2d at 695; see also Davis v. Tampa Bay Arena, Ltd., No. 8:12-CV-60-T-30MAP,
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`2013 WL 3285278, at *9 (M.D. Fla. June 27, 2013) ([defendant’s] failure to abide by the terms of
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`the implied license, which plaintiff did not rescind, constituted a breach of contract, not copyright
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`infringement; holding that the appropriate remedy for any breach of the covenants is a breach of
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`contract action).
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`Plaintiff has conflated a claim of copyright infringement with a claim of breach of contract
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`for failure to pay royalties. Federal courts have held that the payment of royalties pursuant to a
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`contractual agreement is a covenant, and as such, “if the [licensee’s] improper conduct constitutes
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`a breach of a covenant undertaken by the [licensee] . . . and if such covenant constitutes an
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`8 The Court notes that the Copyright provision in Clause 2 is subject to Clause 10, a Right to Terminate
`provision. That provision states that “commencing one year from publication date, the Publishers agree
`that in the event of the Author not receiving a minimum of $5,000 for two consecutive half-yearly payments,
`the Work may be deemed by the Author as out-of-print, and the Author will have the option to terminate
`the Contract with all rights therein reverting to him.” (Doc. 45, p. 21) (emphasis added).
`According to the Agreement, Clause 10 may be exercised at Plaintiff’s discretion and does not
`appear to be a condition of the license. Plaintiff has provided no evidence that he invoked his rights under
`Clause 10 and deemed his book out-of-print or terminated the Agreement. Thus, it certainly appears that
`the Agreement remains in effect. In addition, Plaintiff’s repeated reliance on various provisions of the
`Agreement throughout his pleadings, particularly the Application of Law provision in Clause 13 (Doc. 45,
`p. 21), bolsters the Court’s conclusion that the Agreement stands.
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`enforceable contractual obligation, then the [licensor] will have a cause of action for breach of
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`contract, not copyright infringement.” Graham v. James, 144 F.3d 229, 236 (2d Cir. 1998).
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`Further undermining Plaintiff’s copyright infringement allegation is the fact that Plaintiff
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`only provides evidence that he notified Defendants of their failure to pay royalties, not of copyright
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`infringement. See Davis, No. 8:12-CV-60-T-30MAP, 2013 WL 3285278 at *9 (“[plaintiff]
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`frequently informed the [defendant] that it was in violation of the existing agreement”). On
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`August 25, 2010, Plaintiff emailed Defendant Stacey to request payment of $2.50 per book sale
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`for a specified period. (Doc. 45, p. 45). In the correspondence, Plaintiff does not accuse
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`Defendant of copyright infringement. Later in 2012, Plaintiff emailed Defendant Stacey to
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`explain that he would consider entering into another agreement with him if Defendant paid him
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`royalties due. (Doc. 45, p. 72). Again, Plaintiff does not mention copyright infringement. His
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`correspondence with Defendants demonstrates an ongoing business relationship and an
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`expectation that they would continue to work together to publish his book—and pay him under the
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`contract.
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`Although Plaintiff uses the term “copyright infringement,” the evidence demonstrates that
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`he granted Defendants an exclusive license which remains in effect. Thus, the Court finds that
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`while Plaintiff may have a cause of action for breach of contract, he has no cause of action for
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`copyright infringement. 9 As a result, Plaintiff fails to allege grounds for federal question
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`jurisdiction, and, as already noted, cannot avail himself of Rule 4(k)(2) for purposes of personal
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`jurisdiction.
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`9 Although Plaintiff asserts that the license was fraudulently transferred (and that Defendants aided and
`abetted, and colluded in such transfer) in the English bankruptcy proceedings (Doc. 1, p. 3 & 5; Doc. 5, p.
`5), this Court has no jurisdiction to determine the legality of the international bankruptcy proceedings. See
`28 U.S.C. §§ 1331-1332 (granting federal courts subject matter jurisdiction in federal question and diversity
`cases). To the extent Plaintiff attempts to state breach of contract, fraud, conspiracy, and unjust enrichment
`claims, such claims arise under state law and do not create grounds for this Court’s jurisdiction.
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`2. Diversity Jurisdiction
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`Now, despite the absence of a federal claim, Plaintiff does appear to have alleged sufficient
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`facts to support the Court’s diversity jurisdiction. See 28 U.S.C. § 1332. Although Plaintiff does
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`not specifically address the citizenship of each Defendant in the complaint, he includes general
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`factual allegations supporting the assumption that Defendants are British nationals. (Doc. 1, p. 1;
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`Doc. 13, p. 1). In addition, Plaintiff demands at least $126,837.50, an amount sufficient to meet
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`the $75,000 minimum amount in controversy requirement. 10 Specifically, Plaintiff demands
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`damages consisting of: a return of his investment of $30,000; royalties of $4,837.50; a minimum
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`of $42,000 as a result of Defendants enriching themselves on the sale of Plaintiff’s books; a
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`minimum of $50,000 for failure to publish Plaintiff’s book; an unspecified amount of punitive
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`damages; the cost of suit and expenses; and any other relief to which Plaintiff may be entitled.
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`(Doc. 1, pp. 7-8). Since there appears to be subject matter jurisdiction plead, I will move on to
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`personal jurisdiction more specifically.
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`B. Personal Jurisdiction
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`A federal court sitting in diversity undertakes a two-step inquiry in determining whether
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`personal jurisdiction exists. The exercise of jurisdiction must: (1) be appropriate under the state
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`long-arm statute; and (2) not violate the Due Process Clause of the Fourteenth Amendment to the
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`United States Constitution.11 United Techs. Corp. v. Mazer, 556 F.3d 1260, 1274 (11th Cir.
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`2009).
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`10 Defendants claim that a much smaller amount is in controversy: $7,500. (Doc. 3, p. 4).
`11 The Court need not further analyze whether it has personal jurisdiction pursuant to Fed. R. Civ. P. 4(k)(2)
`because it concluded Plaintiff has not successfully alleged a federal claim. See supra Part III.A.1. I do
`note, however, that even if a federal claim could be plead, for the reasons discussed infra with regard to the
`due process analysis, Plaintiff cannot satisfy Rule 4(k)(2), as, at a minimum, haling Defendants into Court
`here would offend the traditional notions of fair play and substantial justice. See Oldfield v. Pueblo De
`Bahia Lora, S.A., 558 F.3d 1210, 1220 (11th Cir. 2009) (“The exercise of personal jurisdiction comports
`with due process if the non-resident defendant has established ‘certain minimum contacts with the forum
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`1. Florida’s Long-Arm Statute
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`“Florida’s long-arm statute is to be strictly construed.” Sculptchair, 94 F.3d at 627. The
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`plaintiff has the burden of demonstrating facts that satisfy the statute’s criteria. See Rogers v.
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`Nacchio, 241 F. App’x 602, 605 (11th Cir. 2007). There are two kinds of jurisdiction under
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`Florida’s long-arm statute: specific and general. See Stubbs, 447 F.3d at 1360 n. 3; Canale v.
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`Rubin, 20 So. 3d 463, 465 (Fla. 2d DCA 2009). “[S]pecific jurisdiction is founded on a party’s
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`activities in the forum that are related to the cause of action alleged in the complaint,” while
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`“general jurisdiction arises from the defendant’s contacts with the forum that are not directly
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`related to the cause of action being litigated.” Stubbs, 447 F.3d at 1360 n. 3 (citations omitted)
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`(emphasis added). Although Defendants have not explicitly argued against both specific and
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`general jurisdiction, out of an abundance of caution, the Court will consider both.
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`a. Specific Personal Jurisdiction
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`In relevant part, Florida’s long-arm statute permits the exercise of specific personal
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`jurisdiction over a foreign defendant12 for any cause of action arising from either: its business
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`activities in Florida; 13 its tortious conduct committed in Florida; 14 its injuries to persons or
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`property within Florida, even if the conduct giving rise to those injuries occurred outside of
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`such that the maintenance of the suit does not offend traditional notions of fair play and substantial
`justice.’”) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984)).
`12 “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 . . .” Fla. Stat. § 48.193 (1)(a).
`13 “Operating, conducting, engaging in, or carrying on a business or business venture in this state or having
`an office or agency in this state.” Fla. Stat. § 48.193 (1)(a)(1).
`14 “Committing a tortious act within this state.” Fla. Stat. § 48.193 (1)(a)(2).
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`Case 5:13-cv-00248-ACC-PRL Document 51 Filed 11/25/14 Page 13 of 29 PageID 436
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`Florida;15 its breach of contract for failure to perform acts required to be performed in Florida;16
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`or a contract containing a Florida choice of law provision.17 See Fla. Stat. § 48.193 (1)(a).
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`
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`1) Carrying on a Business in Florida
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`For purposes of § 48.193(1)(a)(1), “‘the activities of the [defendant] sought to be served
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`. . . must be considered collectively and show a general course of business activity in the State for
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`pecuniary benefit.’” Tara Prods., Inc. v. Hollywood Gadgets, Inc., No. 09-CV-61436, 2010 WL
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`1531489, at *12 (S.D. Fla. Apr. 16, 2010) (quoting Sculptchair, 94 F.3d at 627). “The fact that a
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`foreign defendant contracts with a Florida resident is not enough to establish personal jurisdiction
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`over the foreign defendant.” Id. (quoting Wallack v. Worldwide Machinery Sales, Inc., 278
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`F.Supp.2d 1358, 1366 (M.D. Fla. 2003)).
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`In the Defendants’ Fed. R. Civ. P. 12(b)(2) motion to dismiss they challenged the Court’s
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`personal jurisdiction on several grounds: each Defendant is a United Kingdom resident and
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`conducts no business in the United States; none of the Defendants solicited Plaintiff for any
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`business, contacted Plaintiff to enter into any business arrangement or contract, or advertised in
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`the United States; none of the Defendants ever visited Plaintiff or met Plaintiff in the United States;
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`15 “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:
`a. The defendant was engaged in solicitation or service activities within this state; or
`b. 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.”
`Fla. Stat. § 48.193 (1)(a)(6)(a) – (b).
`16 “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)(a)(7).
`17 “Entering into a contract that complies with s. 685.102.” Fla. Stat. § 48.193 (1)(a)(9).
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`Section 685.102 provides for specific jurisdiction if the parties’ contract contains a choice of law
`provision selecting Florida law. “Notwithstanding any law that limits the right of a person to maintain an
`action or proceeding, any person may, to the extent permitted under the United States Constitution, maintain
`in this state an action or proceeding against any person or other entity residing or located outside this state,
`if the action or proceeding arises out of or relates to any contract, agreement, or undertaking for which a
`choice of the law of this state, in whole or in part, has been made pursuant to s. 685.101 and which contains
`a provision by which such person or other entity residing or located outside this state agrees to submit to
`the jurisdiction of the courts of this state.” Fla. Stat. § 685.102.
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`Case 5:13-cv-00248-ACC-PRL Document 51 Filed 11/25/14 Page 14 of 29 PageID 437
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`and Plaintiff retained a literary agent in London to contract with Defendants to publish Plaintiff’s
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`book. (Doc. 3). Defendants subsequently submitted pleadings and affidavits that deny that
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`Defendants “conducted any business in the United