IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

MAINLINE INFORMATION SYSTEMS, INC.,

Plaintiff,

v. Case No.: 4-11-CV-137-SPMWCS

JIMMY D. FORDHAM,

Defendant.

_______________________________________/

ORDER DENYING MOTION TO DISMISS FOR 

LACK OF PERSONAL JURISDICTION

THIS CAUSE comes before the Court upon Defendant Jimmy D. Fordham’s

(Fordham) Motion to Dismiss for Lack of Personal Jurisdiction pursuant to Fed. R. Civ.

P. 12(b)(2) (doc. 10), and Plaintiff Mainline Information Systems’, Inc. (Mainline)

response (doc. 12). For the reasons set forth below, the Court will deny the motion.

I. BACKGROUND AND PROCEDURAL HISTORY

A. Mainline’s Complaint

On April 6, 2011, Mainline initiated this action by filing suit against Fordham. In

its complaint Mainline, a Florida corporation, makes the following assertions:

Mainline is in the business of selling, installing and servicing IBM mainframe

computer systems and software in Florida and throughout the United States. Mainline’s

business is built upon its strong sales personnel and the ability to maintain and recruit

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new customers. Mainline requires highly qualified sales personnel with in-depth

knowledge of Mainline’s business, product and services to effectively communicate with

these current and potential customers. Because of this sales focus, Mainline has spent

substantial sums, time and effort creating competitive compensation packages,

developing effective training methods, and designing employee procedures and policies

in order to attract the most qualified sales personnel.

Mainline further asserts that Fordham was a high ranking employee of Mainline,

working for Mainline for a total of ten and one-half years. During this employment,

Fordham held the position of Operations Manager, Vice President for Sales and Senior

Vice President for Sales. Fordham, in the capacity of his employment, was given

access to confidential information regarding Mainline’s employees, compensation and

performance. Fordham was also required to sign employment agreements which

included promises not to compete with Mainline, not to solicit Mainline’s customers and

not to solicit Mainline’s employees.

On November 6, 2009, Fordham was terminated from his employment with

Mainline and shortly thereafter accepted a position with Sirius Computer Solutions, Inc.

(Sirius) – a major competitor of Mainline. In 2010, shortly after Fordham’s termination

from Mainline and upon the expiration of the period Fordham agreed not to compete or

solicit customers, Fordham, using confidential information and trade secrets, began to

systematically call Mainline employees attempting to persuade them to leave Mainline

and join Fordham at Sirius. In the process of making these solicitations, Fordham

called employees who were employed by Mainline in its Leon County, Florida location.

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B. Fordham’s Motion to Dismiss

On May 5, 2011, Fordham filed a Motion to Dismiss for Lack of Personal

Jurisdiction alleging that the Florida long-arm statue, which Mainline cited in its

complaint, did not apply to give this Court personal jurisdiction over Fordham. Fordham

asserted in an affidavit that the Florida long-arm statute does not apply to Fordham in

his individual capacity because during the entirety of his employment with Mainline, and

continuing with his employment with Sirius, Fordham has resided and worked in

Birmingham, Alabama. Fordham further asserts that he has not resided in Florida,

conducted any personal business within Florida nor made employment offers to any

Mainline employees who were in Florida.

C. Mainline’s Response

On May 10, 2011, Mainline filed its response to Fordham’s Motion to Dismiss.

II. LEGAL STANDARD

A federal court of diversity jurisdiction may exercise personal jurisdiction to the

extent authorized by the law of the state in which it sits and to the extent allowed under

the Constitution. Meier ex rel. Meier v. Sun Int’l Hotels, Ltd., 288 F.3d 1264, 1269 (11th

Cir. 2002). Thus, this Court must determine whether Florida’s long-arm statute

provides a basis for personal jurisdiction over the defendant. Sculptchair, Inc. v.

Century Arts, Ltd., 94 F.3d 623, 626 (11th Cir. 1996). If the long-arm statute does

provide a basis for personal jurisdiction, courts typically then decide whether the

assertion of jurisdiction comports with notions of fair play and substantial justice under

the Due Process Clause of the Fourteenth Amendment. Id.; World-Wide Volkswagen

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Corp. v. Woodson, 444 U.S. 286 (1980). However, as Fordham did not raise a Due

Process challenge in his Motion, this Court will not address the constitutional

component of personal jurisdiction in this Order.

A defendant may raise the defense of lack of personal jurisdiction through a

motion to dismiss. See Fed. R. Civ. P. 12(b)(2). If the district court does not conduct a

discretionary hearing on the motion to dismiss, then the plaintiff bears the burden of

establishing a prima facie case of personal jurisdiction over the non-resident defendant. 

Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990) (citing Morris v. SSE, Inc., 843

F.2d 489, 492 (11th Cir. 1988)). This prima facie case is established if there is enough

evidence to withstand a motion for a directed verdict. Id. 

If the plaintiff establishes this burden of proof, then the burden shifts to the

defendant to make a prima facie case showing lack of personal jurisdiction via

affidavits, documents and testimony. Venetian Salami Co. v. Parthenais, 554 So. 2d

499, 502 (Fla. 1989). If the defendant sustains this burden, then the plaintiff is required

to substantiate allegations of personal jurisdiction through affidavits and other

competent proof, and not by merely reiterating the factual allegations of the complaint. 

Future Tech. Today, Inc. v. OSF Healthcare Sys., 218 F.3d 1247, 1249 (11th Cir. 2000)

(citing Prentice v. Prentice Colour, Inc., 779 F. Supp. 578, 583 (M.D. Fla. 1991)); but

see Meier, 288 F.3d at 1269 (noting that plaintiff is not required to produce further

evidence supporting jurisdiction when defendant’s affidavit is merely conclusory

assertion that jurisdiction does not exist). This effectively shifts the burden back to the

plaintiff to prove the allegations giving rise to personal jurisdiction, through affidavits,

testimony or other supporting evidence. Future Tech., 218 F. 3d at 1249. Yet despite

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this requirement of substantiating evidence, the district court must accept as true the

facts alleged in the plaintiff’s complaint to the extent that they are uncontroverted by the

defendant’s affidavit. Madara, 916 F.2d at 1514. Moreover, where the plaintiff’s

complaint and the defendant’s affidavit conflict, all reasonable inferences are drawn in

favor of the plaintiff. Id.

III. DISCUSSION

A. Florida’s Long-Arm Statute

Florida’s long-arm statute provides that any person, including a non-resident of

Florida, subjects himself to personal jurisdiction in Florida for a cause of action arising

out of any of the acts enumerated in the subsections of the statute. Fla. Stat.

§48.193(1). Mainline cites to three of these subsections in its complaint – Fla. Stat.

§48.193(1)(a), (1)(b) and (1)(f)(1) – to allege that this Court has personal jurisdiction

over Fordham. Each cited subsection will be discussed in turn.

Fla. Stat. §48.193(1)(a)

Florida’s long-arm statute establishes this Court’s personal jurisdiction over a

non-resident defendant who operates, conducts, engages in, or carries on a business in

Florida or has an office or agency in Florida. Fla. Stat. 48.193(1)(a). Mainline asserts

that this Court has jurisdiction over Fordham according to this subsection and according

to Fordham’s business related activities within Florida. 

When evaluating whether a defendant’s activities amount to carrying on a

business within Florida, a defendant’s activities must be considered collectively and

reveal a general course of business activity in Florida for pecuniary benefit. Future

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Tech., 218 F.3d at 1249 (citing Sculptchair, 94 F.3d at 627). Some factors relevant to

such a consideration include the “presence and operation of an office in Florida, the

possession and maintenance of a license to do business in Florida, the number of

Florida clients served and the percentage of overall revenue gleaned from Florida

clients.” Horizon Aggressive Growth, L.P. v. Rothstein-Kass, P.A., 421 F.3d 1162, 1167

(11th Cir. 2005) (internal citations omitted).

However, statements made in Fordham’s affidavit establish that none of the

above-listed factors are present: Fordham has never resided, lived, voted, paid taxes,

owned or leased property or listed an address or phone number in Florida. Further,

Fordham does not have a license to perform business in Florida, has no assets in

Florida, has no personal office in Florida and claims to have never conducted personal

business within Florida. Mainline does not refute these statements through any

evidentiary support. Therefore, on these facts this Court cannot conclude that

Fordham’s activities amount to Fordham carrying on a business within Florida. 

Further, Fordham raises the “corporate shield” doctrine which holds that personal

jurisdiction does not extend over the individual capacity of a non-resident defendant

when the defendant’s acts within the forum state are performed solely in the

defendant’s capacity as a corporate employee for the benefit of a corporate employer. 

Doe v. Thompson, 620 So. 2d 1004, 1006 (Fla. 1993). Mainline does not refute the

claim in Fordham’s affidavit that all of Fordham’s business activities performed within

Florida were done in his capacity as a corporate employee. Accordingly, this Court

cannot use this subsection to establish jurisdiction over Fordham in his individual

capacity.

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Therefore, this Court cannot exercise personal jurisdiction over Fordham

pursuant to Fla. Stat. §48.193(1)(a).

Fla. Stat. §48.193(1)(f)(1)

Florida’s long-arm statute grants this Court personal jurisdiction over a person

who causes injury to persons or property within Florida, which injury arises out of an act

performed outside of Florida, if the defendant was engaged in solicitation or service

activities within this state. Fla. Stat. §48.193(1)(f)(1). Mainline alleges that the

economic injury which resulted from Fordham’s actions occurred within Florida and thus

subject Fordham to this Court’s personal jurisdiction over him.

However, Fla. Stat. §48.193(1)(f)(1) does not allow personal jurisdiction to be

established over a non-resident defendant for acts occurring outside of Florida and

which cause only financial or economic injury within Florida. Response Reward Sys.,

L.C. v. Meijer, Inc., 189 F. Supp. 2d 1332, 1337 (M.D. Fla. 2002) (citing Sun Bank, N.A.

v. E.F. Hutton & Co., 926 F.2d 1030, 1033 (11th Cir. 1991)). Thus, because Mainline

pleads economic injury alone – without a pleading of physical injury or property damage

– this is insufficient to establish personal jurisdiction over a non-resident defendant

under Fla. Stat. §48.193(1)(f)(1). Rogers v. Nacchio, 241 Fed. Appx. 602, 606 (11th

Cir. 2007) (citing Aetna Life & Cas. Co. v. Therm-O-Disc, Inc., 511 So. 2d 992, 994 (Fla.

1987)). Accordingly, this Court cannot exercise personal jurisdiction over Fordham

through this subsection of Florida’s long-arm statute.

Fla. Stat. §48.193(1)(b)

Florida’s long-arm statute establishes this Court’s personal jurisdiction over a

non-resident defendant who commits a tortious act within Florida for any cause of

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action arising from that tortious act. Fla. Stat. §48.193(1)(b). Mainline alleges that

Fordham’s tortious act of interfering with business relationships between Mainline and

its employees occurred within Florida and thus subjects Fordham to this Court’s

personal jurisdiction.

As discussed earlier, the corporate shield doctrine normally prevents a corporate

employee from being haled into a forum state’s court in his individual capacity when his

actions in the forum state occur in his corporate capacity for the benefit of his corporate

employer. Doe, 620 So. 2d at 1006. However, this doctrine does not apply when the

employee commits intentional misconduct. Id. at 1006 n.1. Since Mainline has alleged

an intentional tort, the corporate shield doctrine does not apply to exclude Fordham

from this Court’s exercise of personal jurisdiction under this subsection. Id.

In deciding whether a tortious act has occurred within Florida, the defendant’s

physical presence is not required. Horizon, 421 F. 3d at 1168 (citing Wendt v.

Horowitz, 822 So. 2d 1252, 1260 (Fla. 2002)). In fact, the 11th Circuit has interpreted

Fla. Stat. §48.193(1)(b) to grant this Court personal jurisdiction over a defendant who

has committed a tortious act outside of Florida and which results in injury within Florida. 

Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1216 (11th Cir. 1999); Licciardello v.

Lovelady, 544 F.3d 1280, 1283 (11th Cir. 2008). However, the 11th Circuit has made

clear that an injury to a business interest located entirely outside of Florida is not

considered an injury resulting in Florida. Estate of Scutieri v. Chambers, 386 Fed.

Appx. 951, 954 n.6 (11th Cir. 2010).

Mainline has met its initial burden of proof of establishing personal jurisdiction

through its allegations that Fordham systematically solicited, attempted to persuade and

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offered signing bonuses to employees who worked in Florida in an attempt to persuade

them to leave Mainline and to join Sirius – Fordham’s current employer and a major

competitor of Mainline. The 11th Circuit has specifically stated that “allegations about

an out-of-state defendant’s telephonic, electronic, or written communications into

Florida are sufficient to trigger jurisdiction under the Long-Arm statute provided,

however, that the cause of action arises from that communication. ” Horizon, 421 F.3d

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at 1168 (internal citations omitted). Fordham’s affidavit, although stating Fordham has

not made any offers of employment, does not dispute or deny Mainline’s allegations

that Fordham made tortious solicitations to Florida employees. Since Mainline’s

allegations are thus uncontroverted, this Court must accept them as true. Madara, 916

F.2d at 1514. Based on these facts, Mainline’s allegations are sufficient to establish

this Court’s personal jurisdiction over Fordham through Fla. Stat. §48.193(1)(b).

IV. ORDER

Based upon the foregoing reasons, it is hereby ORDERED AND ADJUDGED

that Defendant’s Motion to Dismiss for Lack of Personal Jurisdiction is DENIED.

DONE AND ORDERED this twenty-fourth day of May, 2011.

s/ Stephan P. Mickle 

Stephan P. Mickle

Chief United States District Judge

Since Fordham’s communications and solicitations to Mainline’s employees form the basis of the tort Mainline has

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pled and solicitations are themselves the actual tort, this cause of action arises from the communications. See Estate

of Scutieri, 386 Fed. Appx. at 954 n.6; e.g. Horizon, 421 F.3d at 1168-69.

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