DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

BRIAN MCLANE,

Appellant,

v.

THE AUTOMOTIVE RESOURCE NETWORK HOLDINGS, INC., n/k/a 

NATIONWISE CAPITAL VENTURES, INC., a Florida corporation, 

NOSTEGO, LLC, a Delaware limited liability company, LARRY ROLEN, 

an individual, and SAFEDATA TRUST, INC., a Tennessee corporation,

Appellees.

No. 4D15-107

[November 4, 2015]

Appeal of a non-final order from the Circuit Court for the Seventeenth 

Judicial Circuit, Broward County; John J. Murphy, III, Judge; L.T. Case 

No. 14-8783 (04).

Raymond C. Carr and Joshua Magidson of MacFarlane Ferguson & 

McMullen, P.A., Clearwater, for appellant.

No brief filed for appellees.

PER CURIAM.

Brian McLane appeals a non-final order denying his Motion to Dismiss 

Plaintiff’s Complaint for Lack of Personal Jurisdiction. We agree that the 

evidence was insufficient to show that McLane had sufficient minimum 

contacts with Florida, and the motion should have been granted. 

McLane, a Kentucky resident, is a managing member of Nostego, LLC, 

a Delaware company with its principal place of business in Kentucky. In 

a December 2012 purchase agreement, Nostego agreed to sell 245,000 

unique gift card codes to The Automotive Resource Network Holdings, Inc. 

(“ARNH”). ARNH is a Florida limited liability company with its principal 

place of business in New York. 

A January 2013 Letter of Agreement between Nostego and SafeData 

Trust, Inc. indicated that Nostego would receive the cards from SafeData 

Trust, and ARNH would be the authorized reseller under a separate 
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agreement with Nostego. 

In May 2014, ARNH filed a complaint in Broward County against 

Nostego, McLane, and other defendants for rescission, declaratory relief, 

injunction, and breach of contract. An amended complaint was filed in 

September 2014. The only counts against McLane are for breach of 

contract (third party beneficiary) and fraud in the inducement. The 

amended complaint alleged McLane committed a tortious act in this state, 

breached a contract by failing to perform acts that the contract required 

to be performed in this state, and engaged in substantial, and not isolated 

activity in this state. The amended complaint alleged venue was proper 

here because the cause of action accrued in Broward County, and based 

on a venue provision in the purchase agreement.

McLane filed his motion to dismiss and a supporting affidavit. He 

argued that he was not a party to the purchase agreement, and ARNH did 

not show that he operated a business venture in the state or that he 

committed a tort in the state. He alleged that he signed the contracts as 

a managing member of Nostego and denied that he personally paid for the 

gift card codes. He stated that the contract negotiations did not occur in 

Florida, and he did not conduct any individual business with ARNH. 

ARNH did not file an affidavit to rebut McLane’s affidavit contesting 

jurisdiction. 

At the hearing on his motion, McLane reiterated that the allegations of 

fraud in the inducement in the amended complaint do not indicate that 

his alleged false statements were made in Florida. He argued the 

communication with ARNH occurred in New York, and introduced 

corporate filings to show ARNH’s principal place of business in 2012 and 

2013 was New York.

ARNH responded that its articles of incorporation going back to 1997 

show a registered office in Ft. Lauderdale. 

ARNH believes Nostego is McLane’s alter ego and that he formed the 

company only after signing the purchase agreement with ARNH. ARNH 

alleged a fraud occurred when McLane represented that he already had 

paid for these cards when he did not have them to sell. The cards never 

were provided, and they since have expired.

The trial court denied the motion to dismiss without explanation. 

The allegations in the amended complaint do not show that McLane 
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committed a tort in Florida or that he failed to perform a contractual 

obligation that he was personally required to perform in Florida. But, even 

if the amended complaint sufficiently pleaded a cause of action and 

properly alleged personal jurisdiction as to McLane, ARNH did not provide 

an affidavit or any evidence that refuted McLane’s affidavit. See Venetian 

Salami Co. v. Parthenais, 554 So. 2d 499, 502–03 (Fla. 1989); Votaw v. 

Watkins, 660 So. 2d 1171 (Fla. 4th DCA 1995) (holding that the trial court 

erred in denying a motion to dismiss where plaintiff did not refute the proof 

in defendants’ affidavits contesting jurisdiction either by affidavit or at an 

evidentiary hearing). Reiterating factual allegations in a complaint does 

not meet the plaintiff’s burden to substantiate its jurisdictional allegations 

once the defendant’s affidavit makes a prima facie showing that the longarm statute does not apply. Electro Eng’g Prods. Co. v. Lewis, 352 So. 2d 

862, 864 (Fla. 1977); Shoppers Online, Inc. v. E-Pawn, Inc., 792 So. 2d 615 

(Fla. 4th DCA 2001).

Accordingly, we reverse and remand for the trial court to grant 

McLane’s motion to dismiss.

Reversed and Remanded.

CIKLIN, C.J., STEVENSON and GROSS, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.