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Filing # 186556582 E-Filed 11/20/2023 11:52:08 PM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA.
CODY KERNS, an individual, KERNS CAPITAL)
MANAGEMENT, INC., a British Virgin Islands CASE NO.: 2023-020202-CA-01
Company, and WFTMB Holdings, LLC, a Florida
Limited Liability Company,
Plaintiffs,
v.
FXWINNING, LTD., a Hong Kong Limited
Company, JONATHAN LOPEZ, an individual,
JULIAN KUSCHNER, an individual, DAVID
MERINO, an individual, RENAN DA ROCHA
GOMES BASTOS, an individual, RAFAEL
BRITO CUTIE, an individual, BBRC REAL
ESTATE, LLC, a Florida Limited Liability
Company,
Defendants.
DEFENDANT DAVID MERINO’S MOTIONS TO QUASH SERVICE OF PROCESS, TO
DISMISS AMENDED COMPLAINT FOR LACK OF PERSONAL JURISDICTION, OR
ALTERNATIVELY, FOR FAILURE TO STATE A CLAIM
Defendant David Merino (“Merino”), specially appearing by and through undersigned
counsel for the sole purpose of contesting jurisdiction, and pursuant to Fla. R. Civ. P. 1.070 and
1.140, and supported by the Declaration of David Merino (the “Merino Declaration”), attached
hereto as Exhibit A!, and the Declaration of Rafael Brito Cutié (the “Brito Declaration”), attached
hereto as Exhibit B?, a moves this Court to Quash Service of Process, and/or to Dismiss the
' As a result of Defendant Merino residing in Dubai, UAE, the presence of a significant time difference with
undersigned counsel, and difficulty in communicating with Merino, Merino has been unable to complete the
verification of the Merino Declaration. Accordingly, Merino files an unverified version of the Merino Declaration and
will submit a verified copy of the Merino Declaration as soon as Merino has an opportunity to verify.
? Merino submits the Verified Brito Declaration previously submitted in the CFT Solutions, LLC, et al v. FXWINNING,
LTD, et al., Case No: 2023-016392-CA-01, D.E. 59 at Ex. A.
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Amended Complaint for Lack of Personal Jurisdiction and Failure to State a Cause of Action, and
in support states:
INTRODUCTION
Plaintiffs made no effort to properly locate and serve service of process upon Defendant
David Merino (“Merino”). Plaintiffs filed an Ex Parte Motion for an Order Authorizing Service of
Process Via Email and Whatsapp Messaging predicated only on the fact that Plaintiffs had
communicated with Merino via these electronic means. The Plaintiffs completely disregarded the
Florida Rules of Civil Procedure and Florida law and requested ex parte that this Court grant them
permission to serve Merino without even attempting to locate his address or attempting personal
service under the Hague Service Convention.
Further, even if Plaintiffs had properly served service of process upon Merino, which they
have not, Plaintiffs’ Amended Complaint does not present a sufficient basis for this Court to
exercise jurisdiction over Merino. The Amended Complaint includes only conclusory allegations.
For purposes of this Motion to Quash and to Dismiss, this Court is not required to accept those
allegations as true.For purposes of this Motion to Quash and to Dismiss, this Court is not required
to accept those allegations as true.
As such, Merino respectfully requests that this Court quash the purported service of process
on him; that attempted service is not in compliance with Florida law. Further, Merino prays that
this Court will dismiss the Amended Complaint for lack of personal jurisdiction over him.
RELEVANT PROCEDURAL HISTORY
1 On July 24, 2023, Plaintiffs, Cody Kerns (“Kerns”), Kerns Capital Management,
Inc. (“Kerns Capital”), and WFTMB Holdings LLC (“WFTMB”) as assignee of Christopher
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McGinnis (“McGinnis”) (collectively, “Plaintiffs”) filed their original complaint in this action (the
“Original Complaint"). See D.E. 2.
2 On August 3, 2023, Plaintiffs filed their Ex Parte Motion for an Order Authorizing
Service of Process Via Email and Whatsapp Messaging on Defendant David Merino (“Merino”)
(the “Ex Parte Motion on Service”). See D.E. 19.
3 In their Motion Plaintiffs do not describe a single attempt to obtain a valid address
where they might attempt to serve Merino personally. Plaintiffs do not even allege that Merino’s
whereabouts are unknown. Instead, Plaintiffs simply represent to the Court that Kerns and Merino
have communicated via electronic means. See Ex Parte Mot. on Service 4 1-7.
4. On August 12, 2023, this Court granted the Ex Parte Motion on Service. See D.E.
26.
5 On August 14, 2023, the Clerk issued summons for Merino at the email address
ddmmgg30@gmail.com and telephone number +34 646 62 32 08 (the “Merino Summons”). See
D.E. 27.
6. On August 24, 2023, the Plaintiffs filed a Return of Service indicating that an email
serving Merino was sent via email to ddmmqq30@gmail.com and via WhatsApp. See D.E. 45.
7
Before Merino could respond to the Original Complaint and raise his insufficient
service of process arguments, this Court dismissed the Original Complaint in part. See D.E. 88.
8 On October 31, 2023, Plaintiffs filed their Amended Complaint (the “Amended
Complaint”). See D.E. 96.
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9 The Amended Complaint was served upon the undersigned via the court’s e-filing
system. However, per Fla. R. Jud. Admin., Rule 2.516(a), suchsuch e-service is not the equivalent
of “service of formal notice” upon Merino of the Amended Complaint.
MOTION TO QUASH ALTERNATE SERVICE
A, Standards of Review.
On Merino’s motion to quash, the Third District Court of Appeals would conduct a de novo
review of the Court’s ruling on the motion to quash, which review may occur before a final
judgment. Allstate Mortg. Sols. Transfer v. Bank of Am., N.A., 338 So. 3d 985, 987 (Fla. 3d DCA
2022) (citations omitted). Moreover, because the statutes that are addressed in the motion to quash
raise constitutional considerations, the appellate court will apply strict construction to that analysis:
“Because substituted service of process statutes provide an exception to the general rule that a
defendant must be personally served, they must be strictly construed to protect due process
guarantees.” Alvarado v. Cisneros, 919 So. 2d 585, 588-89 (Fla. 3d DCA 2006) (citations omitted).
“The standard of review of a trial court’s denial of a motion to dismiss for lack of personal
jurisdiction” as well as for more definite statement is de novo. Team Health Hold., Inc. v. Caceres,
357 So. 3d 746, 751 (Fla. 3d DCA 2023); Puigho v. Medex Trad., LLC, 209 So. 3d 598, 600 (Fla.
3d DCA 2014); Banco de los Trabajadores v. Moreno, 237 So. 3d 1127, 1134 (Fla. 3d DCA 2018).
Florida Rules of Civil Procedure 1.140(b) allows for the defense of insufficiency of process to be
presented through motion. When a litigant is confronted by insufficient service, “the proper action
is to quash the invalid service.” Caban v. Skinner, 648 So. 2d 251 (Fla. 3d DCA 1994); see also,
Baraban v. Sussman, 439 So. 2d 1046, 1047 (Fla. 4th DCA 1983) (“Without laboring the matter
we feel that the classic and preferable manner of presenting a defense of insufficiency of service
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of process under Florida Rule of Civil Procedure 1.140(b)(5) is by a motion to quash such allegedly
insufficient service of process rather than by a motion to dismiss the complaint.”).
B Basis for the Motion.
Plaintiffs’ allegations as to Merino, and their Ex-Parte Motion for Service, evidence their
complete disregard for the proper procedure for service of process on a foreign national.
Although Plaintiffs assert in the Amended Complaint that Merino is a resident of Spain,
this allegation alone is sufficient to prove Plaintiffs have failed to conduct any due diligence as to
Merino’s whereabouts for service. Their actions reflect a complete disregard of the obligation to
diligently attempt to find Merino’s residence and to properly determine what service of process
tules apply. Those actions cannot withstand this Court’s scrutiny and must be rejected.
Premised on the allegations in the Amended Complaint and their Ex Parte Motion on
Service, Plaintiffs have failed to justify the grounds for relief under section 48.197(c), Florida
Statutes. Plaintiffs allege that Merino lives in Spain but failed to show any attempt to serve Merino
in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial
Documents in Civil or Commercial Matters (the “HCCH” or the “Hague Service Convention”) or
due diligence in finding Merino’s address for service.
The primary objective of service of process statutes tis to ensure that defendants receive
timely notice of the proceedings that involve them. “Because of the importance of litigants
receiving notice of actions against them, statutes governing service of process are to be strictly
construed and enforced.” Shurman v. Atl. Mortg. & Inv. Corp., 795 So. 2d 952, 954 (Fla. 2001);
see also Schofield v. Wells Fargo Bank, N.A., 95 So. 3d 1051, 1052 (Fla. 5th DCA 2012) (“Service
of process must strictly comply with all relevant statutory provisions.”).
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Nevertheless, while concerns about notice may motivate service of process statutes, due
process considerations require strict compliance with those statutes. “The courts require strict
construction of, and compliance with, the provisions of statutes governing service of process.
The court cannot proceed in a matter until proper proof of valid service is made.” Re-Employment
Servs., Ltd. v. Nat’l Loan Acquisitions Co., 969 So. 2d 467, 471 (Fla. 5th DCA 2007) (citations
omitted). “[T]he party invoking the court’s jurisdiction has the burden of proving proper service
of process.” Empire Beauty Salon v. Commer. Loan Solutions IV, LLC, 159 So. 3d 136, 139 (Fla.
Sth DCA 2014).
Significantly, in cases involving foreign nationals, service of process implicates issues
beyond whether a defendant has received “actual notice.” When the defendant to be served is a
foreign national, along with assessing the sufficiency of any notice of an action that the defendants
have received, there are other considerations. For example, the Court must also consider matters
of comity. A starting point for those considerations is the HCCH Service Convention. However,
that treaty is just one of several comity considerations. Along with that, the Court must recognize
its interest in respecting the sensitivities of foreign authorities, with a view toward obtaining a
resolution that is respected therein:
Another aspect of constitutional due process is ensuring that alternate methods of
service of process comport with the principle of comity. ... Principles of comity are
a matter of the court's discretionary power to determine whether a plaintiff has
complied with due process in its efforts to secure service of process upon a foreign
defendant. ... However, plaintiffs assume the risk that the principle of international
comity might hinder their establishment of jurisdiction over defendants. As a result
of seeking service of process through a method that bypasses the Hague
Convention, plaintiffs may also discover that their failure to employ the
Convention's safe harbor procedures makes enforcement of their judgments abroad
more difficult.
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Wsou Invs. LLC v. Oneplus Tech. (Shenzhen) Co., No. 6-20-CV-00952-ADA, 2021 U.S. Dist.
LEXIS 127056, at *13-14 (W.D. Tex. July 8, 2021) (citations omitted).
Plaintiffs have only argued that email and text messages would satisfy due process for the
purposes of service of process. Nevertheless, Florida Statute § 48.197 (as added by the 2022
amendments) states as follows:
(1) Service of process may be effectuated in a foreign country upon a
party, other than a minor or an incompetent person, as provided in
any of the following:
(a) By any internationally agreed-upon means of service reasonably
calculated to give actual notice of the proceedings, such as those
authorized by the Hague Convention on the Service Abroad of
Judicial and Extrajudicial Documents in Civil or Commercial
Matters.
() Pursuant to motion and order by the court, by other means,
including electronically by e-mail or other technology, which
the party seeking service shows is reasonably calculated to give
actual notice of the proceedings and is not prohibited by
international agreement, as the court orders.
(emphasis added). The language of§ 48.197 would seem to permit a litigant to choose to proceed
under one of the subsections therein. However, the U.S. Supreme Court has held that if service of
process falls within the HCCH Service Convention, the trial court should grant a motion to quash
when service upon a litigant has not been effectuated in compliance with that Convention.
Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 705 (1988). Similarly, Article I of
the HCCH Service Convention holds: “the present Convention shall apply in all cases, in civil or
commercial matters, where there is occasion to transmit a judicial or extrajudicial document for
service abroad.”).
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Florida has recognized compliance with the HCCH Service Convention to be mandatory.
Alvarado-Fernandez v. Mazoff, 151 So. 3d 8, 14 (Fla. 4th DCA 2014). Article I of the Hague
Convention holds: “The present Convention shall apply in all cases, in civil or commercial matters,
where there is occasion to transmit a judicial or extrajudicial document for service abroad. This
Convention shall not apply where the address of the person to be served with the document is not
known.” (emphasis added). Florida has recognized compliance with the Hague Convention to be
mandatory. Alvarado-Fernandez v. Mazoff, 151 So. 3d 8, 14 (Fla. 4th DCA 2014). Therefore,
under Florida law, service of process must comply with the Hague Convention when a defendant’s
address is known. See Mycoski, LLC v. 1688best, 18-CV-60925-KMM, 2018 WL 4775643 (S.D.
Fla. July 2, 2018); see also Alvarado-Fernandez, 151 So. 3d at 13 (“the Hague Convention is a
self-executing treaty, and thus preempts inconsistent methods of service prescribed by state
law in all cases to which it applies”) (emphasis added) (citing Volkswagenwerk
Aktiengesellschaft, 486 U.S. at 698-99 (“[C]ompliance with the [Hague] Convention is mandatory
in all cases to which it applies.”). The Hague Convention only does not apply when the address of
the person to be served with the document is not known. Dolphin Cove Inn, Inc v. Vessel Olymplc
Javelin, 3:19-CV-1018-J-34JRK, 2020 WL 4927590 at *2 (M.D. Fla. Aug. 21, 2020). Florida
courts look to whether a movant exercised due diligence to discover the defendant’s address for
service in accordance with the Hague Service Convention. /d.; see also Pacheco v. Samardjich,
364 So. 3d 1095 (Fla. 3d DCA 2023).
It is beyond dispute that Merino is not a Florida resident. Plaintiffs allege Merino is a
resident of Spain, which is a party to the HCCH Service Convention. Therefore, Puigbo v. Medex
Trading, LLC, 209 So. 3d 598 (Fla. 3d DCA 2014) is instructive. As described in Defendant Brito’s
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Motion to Quash, filed contemporaneously, Puigbo requires Plaintiffs to attempt personal service
through the Spanish Central Authority on Merino before seeking relief of alternative service.
But, there is absolutely no indication that any due diligence was conducted by Plaintiffs to
determine an address for Merino. Had Plaintiffs conducted a diligent search, they would have
learned that Merino is located in Dubai, UAE. Although Dubai is not a signatory to the HCCH,
Plaintiffs still attempted to obtain the relief of alternate service on entirely misleading and
insufficient grounds. Florida’s service statutes do not allow parties to pick and choose rules for
service of process in the name of convenience alone. Rather, the statutes and rules exist inter alia
to protect the legitimacy of this Court’s exercise of judicial authority, as well as to respect the
constraints imposed by Constitutional and international law. For these reasons, this Court should
quash service of process on Merino and require Plaintiffs to serve Merino properly in accordance
with the state, constitutional, and international law.
MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
Should this Court find service on Merino to have been properly effectuated, Merino further
requests that this Court to dismiss the Amended Complaint for Lack of Personal Jurisdiction
pursuant to Fla. R. Civ. P. 1.140.
A, Standard for Dismissal for Lack of Personal Jurisdiction, Generally.
Plaintiffs attempt to invoke this Court’s personal jurisdiction over Merino based on their
conclusory tracking of section 48.193, Florida Statutes (the “Long Arm Statute”) for general and
specific jurisdiction, along with the sprinkling of insufficient or otherwise misleading allegations
of Merino’s activities in Florida. See Am. Compl. {J 16-18. Florida courts require substantial proof
before extending in personam jurisdiction over a nonresident like Merino. See Prentice v. Prentice
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Colour, Inc., 779 F. Supp. 578, 587 (M.D. Fla. 1991). Courts are tasked with the two-pronged
jurisdictional analysis of (1) whether the complaint alleges sufficient jurisdictional facts to bring
the action within the ambit of Florida’s long-arm statute, and (2) whether sufficient minimum
contacts are present to satisfy due process. Williamson v. Prime Sports Mktg., LLC, 314 So. 3d
480, 482 (Fla. 3d DCA 2020). Initially, the plaintiff bears the burden of pleading sufficient
jurisdictional facts to fall within the long-arm statute. Fincantieri-Cantieri Navali Italiani S.P.A.
v. Yuzwa, 241 So. 3d 938, 941-42 (Fla. 3d DCA 2018) (citing Venetian Salami Co. v. Parthenais,
554 So. 2d 499 (Fla. 1989)). General and conclusory jurisdictional allegations are insufficient for
a plaintiff
to meet its burden. See Pub. Gas Co. v. Weatherhead Co., 409 So. 2d 1026 (Fla. 1982)
(affirming the Third District Court of Appeals holding that general and conclusory jurisdictional
allegations are insufficient); see also Loving v. Viecelli, 164 So. 2d 560, 561 (Fla. 3d DCA 1964)
(“mere legal conclusions are not sufficient unless substantiated by allegations of ultimate fact.”).
If the Court determines the Amended Complaint contains sufficient allegations to establish
that the Long Arm Statute applies, the Court must then determine whether Merino has sufficient
minimum contact with the State of Florida to satisfy the due process requirements of the Fourteenth
Amendment. See Blumberg v. Steve Weiss & Co., 922 So, 2d 361, 363 (Fla. 3d DCA 2006). In
other words, both questions must be answered in the affirmative “in order to exercise jurisdiction
over a non-resident defendant.” Estes v. Rodin, 259 So. 3d 183, 190 (Fla. 3d DCA 2018) (affirming
dismissal for lack of personal jurisdiction). You cannot have one without the other. See id.
“If the plaintiff fails to sufficiently plead personal jurisdiction over a nonresident
defendant, the defendant may raise the jurisdictional issue by motion.” Crownover v. Masda Corp.,
983 So. 2d 709, 712 (Fla. 2d DCA 2008). However, only where the allegations in the complaint
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are sufficient to establish personal jurisdiction, both under the Long-Arm Statute and the requisite
minimum contacts, does the burden then shift to the defendant to contest jurisdiction by filing a
legally sufficient affidavit or other sworn proof contesting the jurisdictional allegations. See id. at
712-13 (citing Venetian Salami, 554 So. 2d at 502; Rolley v. de Bizemont, 159 So. 3d 351, 356 (Fla.
3d DCA 2015)). “To be legally sufficient, the defendant’s affidavit must contain factual allegations
which, if taken as true, show that the defendant’s conduct does not subject him to jurisdiction.”
Team Health Holdings Inc. v. Caceres, 2021 WL 1395599 (Fla. 3d DCA Apr. 14, 2021) (citations
omitted). “The burden then shifts [back] to the plaintiff to prove via counter-affidavit ‘the basis
upon which jurisdiction may be obtained.” Estes, 259 So. 3d at 190 (citing Venetian Salami, 554
So. 2d at 502). Where the affidavits offered by the plaintiff and defendant cannot be reconciled, a
limited evidentiary hearing is required in order for the trial court to determine the jurisdictional
issue. Id. at 190-91.
Florida Statute § 48.193 determines when a Florida court has personal jurisdiction of a
foreign individual. The Long Arm Statute sets forth two means by which a nonresident can be
subject to personal jurisdiction in this state: (1)(a) the defendant performs an act enumerated in
Sections 48.193(1)(a)(1) through (9), and the claim arises from those acts (known as “specific
jurisdiction”); or (2) the defendant engages in substantial and not isolated activity within the state,
regardless of whether there is a connection between the activity and the claim (known as “general
jurisdiction”). § 48.193(1)-(2), Fla. Stat,
To meet its burden, a plaintiff must support its jurisdictional allegations affirmatively and
may not merely rely upon the factual allegations set forth in its complaint. See Structural Panels,
Inc. v. Texas Aluminum Industries, Inc., 814 F. Supp. 1058, 1064 (M.D. Fla. 1993). “The failure of
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the plaintiff
to refute the allegations of the defendant’s affidavit requires that a motion to dismiss
be granted.” Washington Capital Corp. v. Milandco, Ltd.,, 695 So. 2d 838, 841 (Fla. 4th DCA
1997).
To be legally sufficient, the defendant's affidavit must contain factual allegations which, if
taken as true, show that the defendant's conduct does not subject him to jurisdiction." Team Health
Holdings Inc. v. Caceres, 2021 WL 1395599 (Fla. 3d DCA 2021) (citations omitted). "The burden
then shifts [back] to the plaintiff to prove via counter affidavit 'the basis upon which jurisdiction
may be obtained." Estes v. Rodin, 259 So. 3d 183, 190 (Fla. 3d DCA 2018) (citing Venetian Salami,
554 So. 2d at 502). Where the affidavits offered by the plaintiff and defendant cannot be reconciled,
a limited evidentiary hearing is required in order for the trial court to determine the jurisdictional
issue. Id. at 190-91.
B Plaintiffs Cannot Meet Their Burden of Proof.
The Long Arm Statute subjects nonresidents to specific jurisdiction for actions arising from
specific acts enumerated in the statute. See § 48.193(1)(a)(1)-(9), Fla Stat. A plaintiff is required
to either track the language of the Long Arm Statute or allege facts sufficient to show that the
defendant’s actions fit within one or more subsections of the statutes. Parisi v. Kingston, 314 So.
3d 656, 660 (Fla. 3d DCA 2021). The Amended Complaint makes a conclusory tracking of the
Long Arm Statute’s specific jurisdiction language to falsely allege personal jurisdiction falls under
sections 48.193(1)(a)(1)-(2) and (6) of the Florida Statutes. Am. Compl. § 15. Otherwise, the
majority of the alleged actions by Merino giving rise to Plaintiffs’ cause of action all arose out of
the alleged agency relationship with Defendants Lopez and Kuschner.
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As reflected in the Merino Declaration, Merino, individually or through any alleged
connection with FX, lacks sufficient contacts with Florida to warrant a finding this Court has
personal jurisdiction over him. The Merino Declaration establishes that Merino resides in the
Dubai, United Arab Emirates. Merino Dec. § 3-4. Importantly, Merino has not purposely conducted
or operated any FX business out of Florida. Merino Dec. {J 9, 10. Merino has not conducted
business on behalf
of FX in Florida. Brito Dec. {[§ 5, 15. Nor does Merino claim to have any agents
or employees in the State of Florida for the purposes of conducting business for FX. Merino Dec.
4 12. Notably, FX has no agents acting on its behalf whatsoever in Florida. Brito Dec. ff 17, 21.
Furthermore, FX does not direct any advertising, solicitations, or marketing into Florida, including
by or through Merino. Brito Dec. § 20.
Merino’s contacts with Florida, if any, are limited to his Florida Corporation, Merino
Capital Solutions, Inc. (“MCSI”). Jd. at § 8. That entity is completely unrelated to any other
allegation in the Amended Complaint. Nevertheless, a foreign individual’s ownership of a
corporation in Florida, alone, is insufficient to confer specific jurisdiction over that foreign
individual. The Amended Complaint is bereft of any allegation that would suggest that MCSI
committed any tortious act in Florida. “In order to prove specific jurisdiction, there must be a
‘connection or “connexity” between the enumerated activity in Florida and the cause of action.’ ...
In other words, the causes of action alleged in the complaint must arise from the defendant's
3 "Ownership of a resident subsidiary corporation by an out-of-state parent corporation, without more, has been
repeatedly deemed insufficient to meet the requirements of section 48.193." Concordia Lutheran Ministries v. Wills,
359 So. 3d 396, 402 (Fla. 2d DCA 2023). “The same rule applies to nonresident individual shareholders of
corporations resident in Florida.” Schwartzberg v. Knobloch, 98 So. 3d 173, 181 (Fla. 2d DCA 2012) (emphasis
added); see also Beasley v. Diamond R. Fertilizer Co., 710 So. 2d 1025, 1026 (Fla. 5th DCA 1998) (rejecting the
argument that the formation ofa corporation and the opening ofa bank account exhibit an intent to conduct business
in Florida sufficient to meet the statutory test for in personam jurisdiction).
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activities in Florida.” Yarger v. Convergence Aviation Ltd., 310 So. 3d 1276, 1280 (Fla. 5th DCA
2021) citing Aegis Def. Servs., LLC v. Gilbert, 222 So. 3d 656, 661 (Fla. Sth DCA 2017). Thus,
Merino’s ownership of MCSI, without more, is insufficient to confer personal jurisdiction in this
Court over him. '[A] fundamental element of the specific jurisdiction calculus is that plaintiff's
claim must "arise out of or relate to" at least one of defendant's contacts with the forum. "In
other words, ‘our inquiry must focus on the direct causal relationship among "the defendant, the
forum, and the litigation." Estes v. Rodin, 259 So. 3d 183, 193 (Fla. 3d DCA 2018) (citations
omitted).
Accordingly, Merino has met his burden of providing a legally sufficient affidavit
explaining why Merino is not subject to personal jurisdiction by this Court, Plaintiffs are required
to provide sufficient evidentiary support to refute Merino’s affidavit. Otherwise, this Court must
dismiss Plaintiffs’ Amended Complaint.
Cc Merino does not have Sufficient Minimum Contacts with the State of Florida that
Warrants Hauling it into this Court.
The terms “contacts” ‘minimum contacts” are absent from the Amended Complaint.
However, even if Plaintiffs satisfactorily alleged Merino’s minimum contacts with the State of
Florida, the Merino Declaration in support of the instant Motion refutes the same. Plaintiffs failed
to show that Merino has sufficient minimum contacts with the State of Florida such that it should
reasonably anticipate being hailed into a court here.
The “minimum contacts” prong of the Venetian Salami analysis “is controlled by United
States Supreme Court precedent interpreting the Due Process Clause and imposes a more
restrictive requirement” than the long-arm statute. Estes, 259 So. 3d at 190 (quoting Execu-Tech
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Bus. Sys. v. New Oji Paper Co., 752 So. 2d 582,584 (Fla. 2000)). “[D]ue process requires that the
nonresident defendant have certain minimum contacts with the forum state such that the
maintenance of the suit does not offend traditional notions of fair play and substantial justice.”
Pres-Kap, Inc. v. Sys. One, Direct Access, Inc., 636 So. 2d 1351, 1352 (Fla. 3d DCA 1994).
Additionally—and particularly germane to this [case]—the required due process analysis differs
depending on whether it is (1) specific or (2) general jurisdiction being asserted.” Caiazzo v.
American Royal Arts Corp., 73 So. 3d 245, 251 (Fla. 4th DCA 2011).
As the court summarized in Estes, in specific jurisdiction cases, the Court must examine
the following:
(1) whether the plaintiffs' claims ‘arise out of or relate to’ at least
one of the defendant's contacts with the forum; (2) whether the
nonresident defendant ‘purposefully availed’ himself of the
privilege of conducting activities within the forum state, thus
invoking the benefit of the forum state's laws; and (3) whether the
exercise of personal jurisdiction comports with traditional notions
of fair play and substantial justice.’
259 So. 3d at 192 (quoting Louis Vuitton Malletier, S.A. v. Mosseri, 736 F. 3d 1339, 1355
(11th Cir, 2013).
i Plaintiffs’ Claims do not Arise Out of Florida.
As to the first element, the inquiry “must focus on the direct causal relationship among ‘the
defendant, the forum, and the litigation.” /d. (citations omitted). In the instant case, Plaintiffs do
not specifically allege that Merino personally committed an intentional tort in Florida. Plaintiffs
allegations giving rise to the common law fraud, violations of Florida’s Deceptive and Unfair Trade
Practices Act, Unjust Enrichment, Negligent Misrepresentation, and Conspiracy are all premised
on actions my alleged, and now refuted, agents. Aside from the alleged misrepresentations from
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Defendant Lopez and Kuschner, there are no allegations specifically indicating that any of
Merino’s actions occurred in Florida. The Merino Declaration refutes all of the Plaintiffs
allegations as to Merino’s connection to Florida for the purposes of this action. For those reasons,
Plaintiffs have failed to satisfy their burden of pleading or proving a direct causal relationship
among ‘the defendant, the forum, and the litigation.”
ii. Merino did not Purposefully Avail himself
of the State of Florida
As to the second element, the Court in Estes explained that in the context of intentional
torts, as is the case here, “there are two tests to determine whether purposeful availment occurred:
the ‘effects test’ articulated in Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804
(1984), and the traditional analysis.” Jd. (citing Louis Vuitton, 736 F.3d at 1356).
Under the effects test,’ a nonresident defendant's single tortious act
can establish purposeful availment, without regard to whether the
defendant had any other contacts with the forum state, where ‘the
tort: “(1) [was] intentional; (2) [was] aimed at the forum state; and
(3) caused harm that the defendant should have anticipated would
be suffered in the forum state.”
Id. (citations omitted). The question for the Court is “whether the defendant's conduct
connects him to the forum in a meaningful way.” Jd.
Under the traditional test, courts ‘identify all contacts between a
nonresident defendant and Florida’ and determine ‘whether those
contacts: (1) are related to the plaintiffs cause of action; (2) involve
some act by which the defendant purposefully availed himself of the
privileges of doing business within the forum; and (3) are such that
the defendant should reasonably anticipate being haled into court in
the forum.
Id. (citations omitted).
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This Court should find that under both the effects test and the traditional test Plaintiffs did
not, and indeed cannot, establish that Merino purposefully availed himself of the privilege of
conducting activities within the State of Florida.
iii. Traditional Notions of Fair Play and Substantial Justice Warrant Dismissal.
The third and final prong of the due process analysis requires the Court to consider four
factors: “(1) the burden on the defendant; (2) the forum's interest in adjudicating the dispute; (3)
the plaintiff's interest in obtaining convenient and effective relief; and (4) the judicial system's
interest in resolving the dispute.” Estes, 259 So. 3d at 197. The primary concern in this analysis is
the burden on the defendant. /d. In the instant case, again, the Amended Complaint completely
disregards the obligation of establishing minimum contacts. The Amended Complaint fails to
provide sufficient allegations that Merino had the requisite contacts with the State of Florida
sufficient to haul it into a Florida court. Accordingly, this Court should find that Plaintiffs failed
the third prong of Venetian Salami.
D. This Court Lacks General Jurisdiction Over Merino.
Because Plaintiffs cannot satisfy their burden of establishing Merino has sufficient
minimum contacts to satisfy specific jurisdiction, general jurisdiction cannot be conferred over
Merino.
Under section 48.193(2) of the Florida Statutes. Merino must be “engaged in substantial
and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or
otherwise,[.]” “The continuous and systematic general business contacts sufficient to confer
general jurisdiction present a much higher threshold than those contacts necessary to support
specific jurisdiction under section 48.193(1).” Trs. of Columbia Univ. v. Ocean World, S.A., 12
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So.3d 788, 792 (Fla. 4th DCA 2009) (emphasis added). Visiting Florida on vacation, even a few
times a year, is insufficient to find that Merino is systematically and continuously conducting
business in Florida to confer general jurisdiction. See Two Worlds United v. Zylstra, 46 So. 3d
1175, (Fla. 2d DCA 2010) (‘“Zylstra testified that he has not lived in Florida since 1994 and that
he comes to Florida only a few times a year to visit friends and family. His contacts in Florida are
insufficient to satisfy section 48.193(2).”) Furthermore, Merino has never established a workplace
or office in Florida. Merino Dec. § 7. Clearly, Merino does not have the continuous and systematic
business contact with Florida to confer general jurisdiction.
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
Merino has appeared specially for the limited purpose of contesting issues of service and
jurisdiction. To avoid any waiver of arguments, in this section, Merino will summarize its basis
for dismissal of claims asserted against him in the Amended Complaint. This section is not
intended to extend Merino’s appearance or to seek affirmative relief beyond that which is required
to contest jurisdictional issues.
If this Court does not dismiss Merino from this action for the reasons stated above, Merino
moves to dismiss the claims asserted against him pursuant to Fla. R. Civ. P. 1.140. The allegations
in the Complaint fail to support the causes of action asserted against Merino for common law fraud,
conspiracy, violation of Florida’s Deceptive and Unfair Trade Practices Act, and for Unjust
Enrichment. Counts 10-13, 26, and 28 should be dismissed for the reasons stated herein.
I Standard for Dismissal, Generally.
Under Florida Rule of Civil Procedure 1.140(b)(6), a pleading’s failure to state a cause of
action may be brought on a motion to dismiss. A motion to dismiss under rule 1.140(b) “tests
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whether the plaintiff has stated a cause of action... .” Lonestar Alternative Solution, Inc. v. Leview-
Boymelgreen Soleil Developers, LLC, 10 So. 3d 1169, 1171 (Fla. 3d DCA 2009). “When analyzing
a motion to dismiss based on [Rule 1.140(b)(6)], a court is limited to a consideration of the four
comers of the plaintiffs complaint.” Miller v. Nelms, 966 So. 2d 437, 439 (Fla. 2d DCA
2007). Where “the pleader has failed to state a cause of action and it conclusively appears there is
no possible way to amend the complaint to state a cause of action,” dismissal of the complaint with
prejudice should be granted. Fla. Nat. Org. for Women, Inc. v. State, 832 So. 2d 911, 915 (Fla. 1st
DCA 2002).
Similarly, if the “face of the complaint contains allegations which demonstrate the
existence of an affirmative defense, . . . then such a defense may be considered on a motion to
dismiss.” Kellerman v. Bd. of Trustees of City of Hollywood Firefighters’ Pension Sys., 2022 WL
42760, *1(Fla. 4th DCA Jan. 5, 2022).
IL. Count 10 through 12 for Common Law Fraud Should be Dismissed as to Merino
Plaintiffs’ Count 10 through 12 for Common Law Fraud against Merino should be
dismissed as to Kuschner-Kerns Website Misrepresentations and Merino’s Misrepresentations #1
through #4, #10, and #11.
A cause of action for fraud must allege: (1) a representation by the defendant designed to
prompt action by the plaintiff, (2) falsity of the representation and the defendant's knowledge of
the falsity, and (3) the plaintiff's reliance on the representation to his detriment. Arnold v. Weck,
388 So.2d 269, 270 (Fla. 4th DCA 1980). When fraud is relied upon, “the allegations relating
thereto should be specific and the facts constituting the fraud clearly stated.” Kutner v. Kalish, 173
So.2d 763, 764 (Fla. 3rd DCA), cert. denied, 183 So.2d 210 (Fla.1965). Fla. R. Civ. P. 1.120(b),
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requires that the circumstances constituting fraud “shall be stated with such particularity as the
circumstances may permit.” Furthermore, a principal is civilly liable for the tortious acts of his
agent that are within the scope of agency and motivated, at least in part, by a purpose to serve the
principal. Goodman v. Rose Realty W., Inc., 193 So. 3d 86, 87 (Fla. 4th DCA 2016). In order to
establish the existence of an agency relationship, three elements are necessary: ()
acknowledgement by the principal that the agent will act on his or her behalf, (2) acceptance by
the agent, and (3) control by the principal over the agent's actions.
Abdo vy. Abdo, 263 So. 3d 141, 144 (Fla. 2d DCA 2018)
Here, each of the above referenced misrepresentations allegedly attributable to Merino
were each made by Defendants Lopez and Kuschner, as alleged agents of Merino. See Am. Compl.
49 33, 40, 42, 44, 65, 76. The Amended Complaint is devoid of any specificity that these alleged
statements by Lopez and Kuschner were made within the scope of their agency with Merino, were
made with the purpose of serving Merino’s interests, or were made under the control of Merino.
Accordingly, Plaintiffs have failed to state a cause of action for common law fraud against Merino.
Til. Count 13 for Conspiracy Should be Dismissed as to Merino
Plaintiffs’ Count 13 for conspiracy should be dismissed as a result of the intra-corporate
conspiracy doctrine. The doctrine provides that “neither an agent nor an employee can conspire
with his or her corporate principal or employer.” Richard Bertram, Inc. v. Sterling Bank & Trust,
820 So.2d 963, 966 (Fla. 4th DCA 2002) (quoting Lipsig v. Ramlawi, 760 So.2d 170, 180 (Fla. 3d
DCA 2000)). It is not possible for a single legal entity consisting of the corporation and its agents
to conspire with itself because a civil conspiracy requires “an agreement between two or more
parties.” Mancinelli v. Davis, 217 So. 3d 1034 (Fla. 4th DCA 2017) (citations omitted). Each
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Defendant named in Count 13 for conspiracy is asserted to be an agent or employee of FX. See
e.g. Am. Compl. §§ 8-10, 30-33. Accordingly, this Court should dismiss Count 13 for failure to
state a claim for conspiracy.
Iv. Count 26 for Violation of Florida and Unfair Trade Practices Act Should be
Dismissed as to Merino.
Count 26 for Violation of Florida’s Deceptive and Unfair Trade Practices Act
(“FDUTPA”) should be dismissed as to Merino for all alleged acts, except for Plaintiffs’ “Website
Misrepresentations.” Under FDUTPA “[u]nfair methods of competition, unconscionable acts or
practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce are
hereby declared unlawful." § 501.204(1), Fla. Stat. “Trade or commerce” is defined as “the
advertising, soliciting, providing, offering, or distributing, whether by sale, rental, or otherwise, of
any good or service, or any property, whether tangible or intangible, or any other article,
commodity, or thing of value, wherever situated.” § 501.203(8), Fla. Stat. Furthermore, “although
not specifically identified in the statute, there are basically three elements that are required to be
alleged to establish a claim pursuant to the FDUTPA: 1) a deceptive act or unfair practice; 2)
causation; and 3) actual damages.” KC Leisure, Inc. v. Haber, 972 So. 2d 1069, 1073 (Fla. Sth
DCA 2008). “Finally, as to Section 501.204 of the Florida Statutes, although it appears that this
provision may not require proof of actual fraud, the consumer must prove that the seller engaged
in “unfair or deceptive acts or practices” to be entitled to relief. The seller's conduct must be unfair
or deceptive, and the consumer must be aggrieved by the deception.” Jn re Crown Auto
Dealerships, Inc., 187 B.R. 1009, 1018 (Bankr. M.D. Fla. 1995).
In order to proceed against an individual using a FDUTPA violation theory, an aggrieved
party must allege that the individual was a direct participant in the improper dealings. KC Leisure,
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Preview
Filing # 186556582 E-Filed 11/20/2023 11:52:08 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA. CODY KERNS, an individual, KERNS CAPITAL) MANAGEMENT, INC., a British Virgin Islands CASE NO.: 2023-020202-CA-01 Company, and WFTMB Holdings, LLC, a Florida Limited Liability Company, Plaintiffs, v. FXWINNING, LTD., a Hong Kong Limited Company, JONATHAN LOPEZ, an individual, JULIAN KUSCHNER, an individual, DAVID MERINO, an individual, RENAN DA ROCHA GOMES BASTOS, an individual, RAFAEL BRITO CUTIE, an individual, BBRC REAL ESTATE, LLC, a Florida Limited Liability Company, Defendants. DEFENDANT DAVID MERINO’S MOTIONS TO QUASH SERVICE OF PROCESS, TO DISMISS AMENDED COMPLAINT FOR LACK OF PERSONAL JURISDICTION, OR ALTERNATIVELY, FOR FAILURE TO STATE A CLAIM Defendant David Merino (“Merino”), specially appearing by and through undersigned counsel for the sole purpose of contesting jurisdiction, and pursuant to Fla. R. Civ. P. 1.070 and 1.140, and supported by the Declaration of David Merino (the “Merino Declaration”), attached hereto as Exhibit A!, and the Declaration of Rafael Brito Cutié (the “Brito Declaration”), attached hereto as Exhibit B?, a moves this Court to Quash Service of Process, and/or to Dismiss the ' As a result of Defendant Merino residing in Dubai, UAE, the presence of a significant time difference with undersigned counsel, and difficulty in communicating with Merino, Merino has been unable to complete the verification of the Merino Declaration. Accordingly, Merino files an unverified version of the Merino Declaration and will submit a verified copy of the Merino Declaration as soon as Merino has an opportunity to verify. ? Merino submits the Verified Brito Declaration previously submitted in the CFT Solutions, LLC, et al v. FXWINNING, LTD, et al., Case No: 2023-016392-CA-01, D.E. 59 at Ex. A. & BARAKAT +BOSSA 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 + Tel: 305-444-3114 + service@b2b.legal Amended Complaint for Lack of Personal Jurisdiction and Failure to State a Cause of Action, and in support states: INTRODUCTION Plaintiffs made no effort to properly locate and serve service of process upon Defendant David Merino (“Merino”). Plaintiffs filed an Ex Parte Motion for an Order Authorizing Service of Process Via Email and Whatsapp Messaging predicated only on the fact that Plaintiffs had communicated with Merino via these electronic means. The Plaintiffs completely disregarded the Florida Rules of Civil Procedure and Florida law and requested ex parte that this Court grant them permission to serve Merino without even attempting to locate his address or attempting personal service under the Hague Service Convention. Further, even if Plaintiffs had properly served service of process upon Merino, which they have not, Plaintiffs’ Amended Complaint does not present a sufficient basis for this Court to exercise jurisdiction over Merino. The Amended Complaint includes only conclusory allegations. For purposes of this Motion to Quash and to Dismiss, this Court is not required to accept those allegations as true.For purposes of this Motion to Quash and to Dismiss, this Court is not required to accept those allegations as true. As such, Merino respectfully requests that this Court quash the purported service of process on him; that attempted service is not in compliance with Florida law. Further, Merino prays that this Court will dismiss the Amended Complaint for lack of personal jurisdiction over him. RELEVANT PROCEDURAL HISTORY 1 On July 24, 2023, Plaintiffs, Cody Kerns (“Kerns”), Kerns Capital Management, Inc. (“Kerns Capital”), and WFTMB Holdings LLC (“WFTMB”) as assignee of Christopher & BARAKAT +BOSSA 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 + Tel: 305-444-3114 » service@b2b.legal McGinnis (“McGinnis”) (collectively, “Plaintiffs”) filed their original complaint in this action (the “Original Complaint"). See D.E. 2. 2 On August 3, 2023, Plaintiffs filed their Ex Parte Motion for an Order Authorizing Service of Process Via Email and Whatsapp Messaging on Defendant David Merino (“Merino”) (the “Ex Parte Motion on Service”). See D.E. 19. 3 In their Motion Plaintiffs do not describe a single attempt to obtain a valid address where they might attempt to serve Merino personally. Plaintiffs do not even allege that Merino’s whereabouts are unknown. Instead, Plaintiffs simply represent to the Court that Kerns and Merino have communicated via electronic means. See Ex Parte Mot. on Service 4 1-7. 4. On August 12, 2023, this Court granted the Ex Parte Motion on Service. See D.E. 26. 5 On August 14, 2023, the Clerk issued summons for Merino at the email address ddmmgg30@gmail.com and telephone number +34 646 62 32 08 (the “Merino Summons”). See D.E. 27. 6. On August 24, 2023, the Plaintiffs filed a Return of Service indicating that an email serving Merino was sent via email to ddmmqq30@gmail.com and via WhatsApp. See D.E. 45. 7 Before Merino could respond to the Original Complaint and raise his insufficient service of process arguments, this Court dismissed the Original Complaint in part. See D.E. 88. 8 On October 31, 2023, Plaintiffs filed their Amended Complaint (the “Amended Complaint”). See D.E. 96. & BARAKAT +BOSSA 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 ¢ Tel: 305-444-3114 * service@b2b.legal 9 The Amended Complaint was served upon the undersigned via the court’s e-filing system. However, per Fla. R. Jud. Admin., Rule 2.516(a), suchsuch e-service is not the equivalent of “service of formal notice” upon Merino of the Amended Complaint. MOTION TO QUASH ALTERNATE SERVICE A, Standards of Review. On Merino’s motion to quash, the Third District Court of Appeals would conduct a de novo review of the Court’s ruling on the motion to quash, which review may occur before a final judgment. Allstate Mortg. Sols. Transfer v. Bank of Am., N.A., 338 So. 3d 985, 987 (Fla. 3d DCA 2022) (citations omitted). Moreover, because the statutes that are addressed in the motion to quash raise constitutional considerations, the appellate court will apply strict construction to that analysis: “Because substituted service of process statutes provide an exception to the general rule that a defendant must be personally served, they must be strictly construed to protect due process guarantees.” Alvarado v. Cisneros, 919 So. 2d 585, 588-89 (Fla. 3d DCA 2006) (citations omitted). “The standard of review of a trial court’s denial of a motion to dismiss for lack of personal jurisdiction” as well as for more definite statement is de novo. Team Health Hold., Inc. v. Caceres, 357 So. 3d 746, 751 (Fla. 3d DCA 2023); Puigho v. Medex Trad., LLC, 209 So. 3d 598, 600 (Fla. 3d DCA 2014); Banco de los Trabajadores v. Moreno, 237 So. 3d 1127, 1134 (Fla. 3d DCA 2018). Florida Rules of Civil Procedure 1.140(b) allows for the defense of insufficiency of process to be presented through motion. When a litigant is confronted by insufficient service, “the proper action is to quash the invalid service.” Caban v. Skinner, 648 So. 2d 251 (Fla. 3d DCA 1994); see also, Baraban v. Sussman, 439 So. 2d 1046, 1047 (Fla. 4th DCA 1983) (“Without laboring the matter we feel that the classic and preferable manner of presenting a defense of insufficiency of service & BARAKAT +BOSSA 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 + Tel: 305-444-3114 » service@b2b.legal of process under Florida Rule of Civil Procedure 1.140(b)(5) is by a motion to quash such allegedly insufficient service of process rather than by a motion to dismiss the complaint.”). B Basis for the Motion. Plaintiffs’ allegations as to Merino, and their Ex-Parte Motion for Service, evidence their complete disregard for the proper procedure for service of process on a foreign national. Although Plaintiffs assert in the Amended Complaint that Merino is a resident of Spain, this allegation alone is sufficient to prove Plaintiffs have failed to conduct any due diligence as to Merino’s whereabouts for service. Their actions reflect a complete disregard of the obligation to diligently attempt to find Merino’s residence and to properly determine what service of process tules apply. Those actions cannot withstand this Court’s scrutiny and must be rejected. Premised on the allegations in the Amended Complaint and their Ex Parte Motion on Service, Plaintiffs have failed to justify the grounds for relief under section 48.197(c), Florida Statutes. Plaintiffs allege that Merino lives in Spain but failed to show any attempt to serve Merino in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “HCCH” or the “Hague Service Convention”) or due diligence in finding Merino’s address for service. The primary objective of service of process statutes tis to ensure that defendants receive timely notice of the proceedings that involve them. “Because of the importance of litigants receiving notice of actions against them, statutes governing service of process are to be strictly construed and enforced.” Shurman v. Atl. Mortg. & Inv. Corp., 795 So. 2d 952, 954 (Fla. 2001); see also Schofield v. Wells Fargo Bank, N.A., 95 So. 3d 1051, 1052 (Fla. 5th DCA 2012) (“Service of process must strictly comply with all relevant statutory provisions.”). & BARAKAT +BOSSA 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 + Tel: 305-444-3114 » service@b2b.legal Nevertheless, while concerns about notice may motivate service of process statutes, due process considerations require strict compliance with those statutes. “The courts require strict construction of, and compliance with, the provisions of statutes governing service of process. The court cannot proceed in a matter until proper proof of valid service is made.” Re-Employment Servs., Ltd. v. Nat’l Loan Acquisitions Co., 969 So. 2d 467, 471 (Fla. 5th DCA 2007) (citations omitted). “[T]he party invoking the court’s jurisdiction has the burden of proving proper service of process.” Empire Beauty Salon v. Commer. Loan Solutions IV, LLC, 159 So. 3d 136, 139 (Fla. Sth DCA 2014). Significantly, in cases involving foreign nationals, service of process implicates issues beyond whether a defendant has received “actual notice.” When the defendant to be served is a foreign national, along with assessing the sufficiency of any notice of an action that the defendants have received, there are other considerations. For example, the Court must also consider matters of comity. A starting point for those considerations is the HCCH Service Convention. However, that treaty is just one of several comity considerations. Along with that, the Court must recognize its interest in respecting the sensitivities of foreign authorities, with a view toward obtaining a resolution that is respected therein: Another aspect of constitutional due process is ensuring that alternate methods of service of process comport with the principle of comity. ... Principles of comity are a matter of the court's discretionary power to determine whether a plaintiff has complied with due process in its efforts to secure service of process upon a foreign defendant. ... However, plaintiffs assume the risk that the principle of international comity might hinder their establishment of jurisdiction over defendants. As a result of seeking service of process through a method that bypasses the Hague Convention, plaintiffs may also discover that their failure to employ the Convention's safe harbor procedures makes enforcement of their judgments abroad more difficult. & BARAKAT +BOSSA 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 + Tel: 305-444-3114 » service@b2b.legal Wsou Invs. LLC v. Oneplus Tech. (Shenzhen) Co., No. 6-20-CV-00952-ADA, 2021 U.S. Dist. LEXIS 127056, at *13-14 (W.D. Tex. July 8, 2021) (citations omitted). Plaintiffs have only argued that email and text messages would satisfy due process for the purposes of service of process. Nevertheless, Florida Statute § 48.197 (as added by the 2022 amendments) states as follows: (1) Service of process may be effectuated in a foreign country upon a party, other than a minor or an incompetent person, as provided in any of the following: (a) By any internationally agreed-upon means of service reasonably calculated to give actual notice of the proceedings, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. () Pursuant to motion and order by the court, by other means, including electronically by e-mail or other technology, which the party seeking service shows is reasonably calculated to give actual notice of the proceedings and is not prohibited by international agreement, as the court orders. (emphasis added). The language of§ 48.197 would seem to permit a litigant to choose to proceed under one of the subsections therein. However, the U.S. Supreme Court has held that if service of process falls within the HCCH Service Convention, the trial court should grant a motion to quash when service upon a litigant has not been effectuated in compliance with that Convention. Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 705 (1988). Similarly, Article I of the HCCH Service Convention holds: “the present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.”). & BARAKAT +BOSSA 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 + Tel: 305-444-3114 » service@b2b.legal Florida has recognized compliance with the HCCH Service Convention to be mandatory. Alvarado-Fernandez v. Mazoff, 151 So. 3d 8, 14 (Fla. 4th DCA 2014). Article I of the Hague Convention holds: “The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad. This Convention shall not apply where the address of the person to be served with the document is not known.” (emphasis added). Florida has recognized compliance with the Hague Convention to be mandatory. Alvarado-Fernandez v. Mazoff, 151 So. 3d 8, 14 (Fla. 4th DCA 2014). Therefore, under Florida law, service of process must comply with the Hague Convention when a defendant’s address is known. See Mycoski, LLC v. 1688best, 18-CV-60925-KMM, 2018 WL 4775643 (S.D. Fla. July 2, 2018); see also Alvarado-Fernandez, 151 So. 3d at 13 (“the Hague Convention is a self-executing treaty, and thus preempts inconsistent methods of service prescribed by state law in all cases to which it applies”) (emphasis added) (citing Volkswagenwerk Aktiengesellschaft, 486 U.S. at 698-99 (“[C]ompliance with the [Hague] Convention is mandatory in all cases to which it applies.”). The Hague Convention only does not apply when the address of the person to be served with the document is not known. Dolphin Cove Inn, Inc v. Vessel Olymplc Javelin, 3:19-CV-1018-J-34JRK, 2020 WL 4927590 at *2 (M.D. Fla. Aug. 21, 2020). Florida courts look to whether a movant exercised due diligence to discover the defendant’s address for service in accordance with the Hague Service Convention. /d.; see also Pacheco v. Samardjich, 364 So. 3d 1095 (Fla. 3d DCA 2023). It is beyond dispute that Merino is not a Florida resident. Plaintiffs allege Merino is a resident of Spain, which is a party to the HCCH Service Convention. Therefore, Puigbo v. Medex Trading, LLC, 209 So. 3d 598 (Fla. 3d DCA 2014) is instructive. As described in Defendant Brito’s & BARAKAT +BOSSA 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 + Tel: 305-444-3114 » service@b2b.legal Motion to Quash, filed contemporaneously, Puigbo requires Plaintiffs to attempt personal service through the Spanish Central Authority on Merino before seeking relief of alternative service. But, there is absolutely no indication that any due diligence was conducted by Plaintiffs to determine an address for Merino. Had Plaintiffs conducted a diligent search, they would have learned that Merino is located in Dubai, UAE. Although Dubai is not a signatory to the HCCH, Plaintiffs still attempted to obtain the relief of alternate service on entirely misleading and insufficient grounds. Florida’s service statutes do not allow parties to pick and choose rules for service of process in the name of convenience alone. Rather, the statutes and rules exist inter alia to protect the legitimacy of this Court’s exercise of judicial authority, as well as to respect the constraints imposed by Constitutional and international law. For these reasons, this Court should quash service of process on Merino and require Plaintiffs to serve Merino properly in accordance with the state, constitutional, and international law. MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION Should this Court find service on Merino to have been properly effectuated, Merino further requests that this Court to dismiss the Amended Complaint for Lack of Personal Jurisdiction pursuant to Fla. R. Civ. P. 1.140. A, Standard for Dismissal for Lack of Personal Jurisdiction, Generally. Plaintiffs attempt to invoke this Court’s personal jurisdiction over Merino based on their conclusory tracking of section 48.193, Florida Statutes (the “Long Arm Statute”) for general and specific jurisdiction, along with the sprinkling of insufficient or otherwise misleading allegations of Merino’s activities in Florida. See Am. Compl. {J 16-18. Florida courts require substantial proof before extending in personam jurisdiction over a nonresident like Merino. See Prentice v. Prentice & BARAKAT +BOSSA 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 + Tel: 305-444-3114 » service@b2b.legal Colour, Inc., 779 F. Supp. 578, 587 (M.D. Fla. 1991). Courts are tasked with the two-pronged jurisdictional analysis of (1) whether the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of Florida’s long-arm statute, and (2) whether sufficient minimum contacts are present to satisfy due process. Williamson v. Prime Sports Mktg., LLC, 314 So. 3d 480, 482 (Fla. 3d DCA 2020). Initially, the plaintiff bears the burden of pleading sufficient jurisdictional facts to fall within the long-arm statute. Fincantieri-Cantieri Navali Italiani S.P.A. v. Yuzwa, 241 So. 3d 938, 941-42 (Fla. 3d DCA 2018) (citing Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989)). General and conclusory jurisdictional allegations are insufficient for a plaintiff to meet its burden. See Pub. Gas Co. v. Weatherhead Co., 409 So. 2d 1026 (Fla. 1982) (affirming the Third District Court of Appeals holding that general and conclusory jurisdictional allegations are insufficient); see also Loving v. Viecelli, 164 So. 2d 560, 561 (Fla. 3d DCA 1964) (“mere legal conclusions are not sufficient unless substantiated by allegations of ultimate fact.”). If the Court determines the Amended Complaint contains sufficient allegations to establish that the Long Arm Statute applies, the Court must then determine whether Merino has sufficient minimum contact with the State of Florida to satisfy the due process requirements of the Fourteenth Amendment. See Blumberg v. Steve Weiss & Co., 922 So, 2d 361, 363 (Fla. 3d DCA 2006). In other words, both questions must be answered in the affirmative “in order to exercise jurisdiction over a non-resident defendant.” Estes v. Rodin, 259 So. 3d 183, 190 (Fla. 3d DCA 2018) (affirming dismissal for lack of personal jurisdiction). You cannot have one without the other. See id. “If the plaintiff fails to sufficiently plead personal jurisdiction over a nonresident defendant, the defendant may raise the jurisdictional issue by motion.” Crownover v. Masda Corp., 983 So. 2d 709, 712 (Fla. 2d DCA 2008). However, only where the allegations in the complaint & BARAKAT +BOSSA 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 ¢ Tel: 305-444-3114 * service@b2b.legal are sufficient to establish personal jurisdiction, both under the Long-Arm Statute and the requisite minimum contacts, does the burden then shift to the defendant to contest jurisdiction by filing a legally sufficient affidavit or other sworn proof contesting the jurisdictional allegations. See id. at 712-13 (citing Venetian Salami, 554 So. 2d at 502; Rolley v. de Bizemont, 159 So. 3d 351, 356 (Fla. 3d DCA 2015)). “To be legally sufficient, the defendant’s affidavit must contain factual allegations which, if taken as true, show that the defendant’s conduct does not subject him to jurisdiction.” Team Health Holdings Inc. v. Caceres, 2021 WL 1395599 (Fla. 3d DCA Apr. 14, 2021) (citations omitted). “The burden then shifts [back] to the plaintiff to prove via counter-affidavit ‘the basis upon which jurisdiction may be obtained.” Estes, 259 So. 3d at 190 (citing Venetian Salami, 554 So. 2d at 502). Where the affidavits offered by the plaintiff and defendant cannot be reconciled, a limited evidentiary hearing is required in order for the trial court to determine the jurisdictional issue. Id. at 190-91. Florida Statute § 48.193 determines when a Florida court has personal jurisdiction of a foreign individual. The Long Arm Statute sets forth two means by which a nonresident can be subject to personal jurisdiction in this state: (1)(a) the defendant performs an act enumerated in Sections 48.193(1)(a)(1) through (9), and the claim arises from those acts (known as “specific jurisdiction”); or (2) the defendant engages in substantial and not isolated activity within the state, regardless of whether there is a connection between the activity and the claim (known as “general jurisdiction”). § 48.193(1)-(2), Fla. Stat, To meet its burden, a plaintiff must support its jurisdictional allegations affirmatively and may not merely rely upon the factual allegations set forth in its complaint. See Structural Panels, Inc. v. Texas Aluminum Industries, Inc., 814 F. Supp. 1058, 1064 (M.D. Fla. 1993). “The failure of & BARAKAT +BOSSA 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 + Tel: 305-444-3114 » service@b2b.legal the plaintiff to refute the allegations of the defendant’s affidavit requires that a motion to dismiss be granted.” Washington Capital Corp. v. Milandco, Ltd.,, 695 So. 2d 838, 841 (Fla. 4th DCA 1997). To be legally sufficient, the defendant's affidavit must contain factual allegations which, if taken as true, show that the defendant's conduct does not subject him to jurisdiction." Team Health Holdings Inc. v. Caceres, 2021 WL 1395599 (Fla. 3d DCA 2021) (citations omitted). "The burden then shifts [back] to the plaintiff to prove via counter affidavit 'the basis upon which jurisdiction may be obtained." Estes v. Rodin, 259 So. 3d 183, 190 (Fla. 3d DCA 2018) (citing Venetian Salami, 554 So. 2d at 502). Where the affidavits offered by the plaintiff and defendant cannot be reconciled, a limited evidentiary hearing is required in order for the trial court to determine the jurisdictional issue. Id. at 190-91. B Plaintiffs Cannot Meet Their Burden of Proof. The Long Arm Statute subjects nonresidents to specific jurisdiction for actions arising from specific acts enumerated in the statute. See § 48.193(1)(a)(1)-(9), Fla Stat. A plaintiff is required to either track the language of the Long Arm Statute or allege facts sufficient to show that the defendant’s actions fit within one or more subsections of the statutes. Parisi v. Kingston, 314 So. 3d 656, 660 (Fla. 3d DCA 2021). The Amended Complaint makes a conclusory tracking of the Long Arm Statute’s specific jurisdiction language to falsely allege personal jurisdiction falls under sections 48.193(1)(a)(1)-(2) and (6) of the Florida Statutes. Am. Compl. § 15. Otherwise, the majority of the alleged actions by Merino giving rise to Plaintiffs’ cause of action all arose out of the alleged agency relationship with Defendants Lopez and Kuschner. & BARAKAT +BOSSA 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 + Tel: 305-444-3114 » service@b2b.legal As reflected in the Merino Declaration, Merino, individually or through any alleged connection with FX, lacks sufficient contacts with Florida to warrant a finding this Court has personal jurisdiction over him. The Merino Declaration establishes that Merino resides in the Dubai, United Arab Emirates. Merino Dec. § 3-4. Importantly, Merino has not purposely conducted or operated any FX business out of Florida. Merino Dec. {J 9, 10. Merino has not conducted business on behalf of FX in Florida. Brito Dec. {[§ 5, 15. Nor does Merino claim to have any agents or employees in the State of Florida for the purposes of conducting business for FX. Merino Dec. 4 12. Notably, FX has no agents acting on its behalf whatsoever in Florida. Brito Dec. ff 17, 21. Furthermore, FX does not direct any advertising, solicitations, or marketing into Florida, including by or through Merino. Brito Dec. § 20. Merino’s contacts with Florida, if any, are limited to his Florida Corporation, Merino Capital Solutions, Inc. (“MCSI”). Jd. at § 8. That entity is completely unrelated to any other allegation in the Amended Complaint. Nevertheless, a foreign individual’s ownership of a corporation in Florida, alone, is insufficient to confer specific jurisdiction over that foreign individual. The Amended Complaint is bereft of any allegation that would suggest that MCSI committed any tortious act in Florida. “In order to prove specific jurisdiction, there must be a ‘connection or “connexity” between the enumerated activity in Florida and the cause of action.’ ... In other words, the causes of action alleged in the complaint must arise from the defendant's 3 "Ownership of a resident subsidiary corporation by an out-of-state parent corporation, without more, has been repeatedly deemed insufficient to meet the requirements of section 48.193." Concordia Lutheran Ministries v. Wills, 359 So. 3d 396, 402 (Fla. 2d DCA 2023). “The same rule applies to nonresident individual shareholders of corporations resident in Florida.” Schwartzberg v. Knobloch, 98 So. 3d 173, 181 (Fla. 2d DCA 2012) (emphasis added); see also Beasley v. Diamond R. Fertilizer Co., 710 So. 2d 1025, 1026 (Fla. 5th DCA 1998) (rejecting the argument that the formation ofa corporation and the opening ofa bank account exhibit an intent to conduct business in Florida sufficient to meet the statutory test for in personam jurisdiction). & BARAKAT +BOSSA 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 ¢ Tel: 305-444-3114 * service@b2b.legal activities in Florida.” Yarger v. Convergence Aviation Ltd., 310 So. 3d 1276, 1280 (Fla. 5th DCA 2021) citing Aegis Def. Servs., LLC v. Gilbert, 222 So. 3d 656, 661 (Fla. Sth DCA 2017). Thus, Merino’s ownership of MCSI, without more, is insufficient to confer personal jurisdiction in this Court over him. '[A] fundamental element of the specific jurisdiction calculus is that plaintiff's claim must "arise out of or relate to" at least one of defendant's contacts with the forum. "In other words, ‘our inquiry must focus on the direct causal relationship among "the defendant, the forum, and the litigation." Estes v. Rodin, 259 So. 3d 183, 193 (Fla. 3d DCA 2018) (citations omitted). Accordingly, Merino has met his burden of providing a legally sufficient affidavit explaining why Merino is not subject to personal jurisdiction by this Court, Plaintiffs are required to provide sufficient evidentiary support to refute Merino’s affidavit. Otherwise, this Court must dismiss Plaintiffs’ Amended Complaint. Cc Merino does not have Sufficient Minimum Contacts with the State of Florida that Warrants Hauling it into this Court. The terms “contacts” ‘minimum contacts” are absent from the Amended Complaint. However, even if Plaintiffs satisfactorily alleged Merino’s minimum contacts with the State of Florida, the Merino Declaration in support of the instant Motion refutes the same. Plaintiffs failed to show that Merino has sufficient minimum contacts with the State of Florida such that it should reasonably anticipate being hailed into a court here. The “minimum contacts” prong of the Venetian Salami analysis “is controlled by United States Supreme Court precedent interpreting the Due Process Clause and imposes a more restrictive requirement” than the long-arm statute. Estes, 259 So. 3d at 190 (quoting Execu-Tech & BARAKAT +BOSSA 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 + Tel: 305-444-3114 » service@b2b.legal Bus. Sys. v. New Oji Paper Co., 752 So. 2d 582,584 (Fla. 2000)). “[D]ue process requires that the nonresident defendant have certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Pres-Kap, Inc. v. Sys. One, Direct Access, Inc., 636 So. 2d 1351, 1352 (Fla. 3d DCA 1994). Additionally—and particularly germane to this [case]—the required due process analysis differs depending on whether it is (1) specific or (2) general jurisdiction being asserted.” Caiazzo v. American Royal Arts Corp., 73 So. 3d 245, 251 (Fla. 4th DCA 2011). As the court summarized in Estes, in specific jurisdiction cases, the Court must examine the following: (1) whether the plaintiffs' claims ‘arise out of or relate to’ at least one of the defendant's contacts with the forum; (2) whether the nonresident defendant ‘purposefully availed’ himself of the privilege of conducting activities within the forum state, thus invoking the benefit of the forum state's laws; and (3) whether the exercise of personal jurisdiction comports with traditional notions of fair play and substantial justice.’ 259 So. 3d at 192 (quoting Louis Vuitton Malletier, S.A. v. Mosseri, 736 F. 3d 1339, 1355 (11th Cir, 2013). i Plaintiffs’ Claims do not Arise Out of Florida. As to the first element, the inquiry “must focus on the direct causal relationship among ‘the defendant, the forum, and the litigation.” /d. (citations omitted). In the instant case, Plaintiffs do not specifically allege that Merino personally committed an intentional tort in Florida. Plaintiffs allegations giving rise to the common law fraud, violations of Florida’s Deceptive and Unfair Trade Practices Act, Unjust Enrichment, Negligent Misrepresentation, and Conspiracy are all premised on actions my alleged, and now refuted, agents. Aside from the alleged misrepresentations from & BARAKAT +BOSSA 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 ¢ Tel: 305-444-3114 * service@b2b.legal Defendant Lopez and Kuschner, there are no allegations specifically indicating that any of Merino’s actions occurred in Florida. The Merino Declaration refutes all of the Plaintiffs allegations as to Merino’s connection to Florida for the purposes of this action. For those reasons, Plaintiffs have failed to satisfy their burden of pleading or proving a direct causal relationship among ‘the defendant, the forum, and the litigation.” ii. Merino did not Purposefully Avail himself of the State of Florida As to the second element, the Court in Estes explained that in the context of intentional torts, as is the case here, “there are two tests to determine whether purposeful availment occurred: the ‘effects test’ articulated in Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984), and the traditional analysis.” Jd. (citing Louis Vuitton, 736 F.3d at 1356). Under the effects test,’ a nonresident defendant's single tortious act can establish purposeful availment, without regard to whether the defendant had any other contacts with the forum state, where ‘the tort: “(1) [was] intentional; (2) [was] aimed at the forum state; and (3) caused harm that the defendant should have anticipated would be suffered in the forum state.” Id. (citations omitted). The question for the Court is “whether the defendant's conduct connects him to the forum in a meaningful way.” Jd. Under the traditional test, courts ‘identify all contacts between a nonresident defendant and Florida’ and determine ‘whether those contacts: (1) are related to the plaintiffs cause of action; (2) involve some act by which the defendant purposefully availed himself of the privileges of doing business within the forum; and (3) are such that the defendant should reasonably anticipate being haled into court in the forum. Id. (citations omitted). & BARAKAT +BOSSA 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 + Tel: 305-444-3114 » service@b2b.legal This Court should find that under both the effects test and the traditional test Plaintiffs did not, and indeed cannot, establish that Merino purposefully availed himself of the privilege of conducting activities within the State of Florida. iii. Traditional Notions of Fair Play and Substantial Justice Warrant Dismissal. The third and final prong of the due process analysis requires the Court to consider four factors: “(1) the burden on the defendant; (2) the forum's interest in adjudicating the dispute; (3) the plaintiff's interest in obtaining convenient and effective relief; and (4) the judicial system's interest in resolving the dispute.” Estes, 259 So. 3d at 197. The primary concern in this analysis is the burden on the defendant. /d. In the instant case, again, the Amended Complaint completely disregards the obligation of establishing minimum contacts. The Amended Complaint fails to provide sufficient allegations that Merino had the requisite contacts with the State of Florida sufficient to haul it into a Florida court. Accordingly, this Court should find that Plaintiffs failed the third prong of Venetian Salami. D. This Court Lacks General Jurisdiction Over Merino. Because Plaintiffs cannot satisfy their burden of establishing Merino has sufficient minimum contacts to satisfy specific jurisdiction, general jurisdiction cannot be conferred over Merino. Under section 48.193(2) of the Florida Statutes. Merino must be “engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise,[.]” “The continuous and systematic general business contacts sufficient to confer general jurisdiction present a much higher threshold than those contacts necessary to support specific jurisdiction under section 48.193(1).” Trs. of Columbia Univ. v. Ocean World, S.A., 12 & BARAKAT +BOSSA 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 + Tel: 305-444-3114 » service@b2b.legal So.3d 788, 792 (Fla. 4th DCA 2009) (emphasis added). Visiting Florida on vacation, even a few times a year, is insufficient to find that Merino is systematically and continuously conducting business in Florida to confer general jurisdiction. See Two Worlds United v. Zylstra, 46 So. 3d 1175, (Fla. 2d DCA 2010) (‘“Zylstra testified that he has not lived in Florida since 1994 and that he comes to Florida only a few times a year to visit friends and family. His contacts in Florida are insufficient to satisfy section 48.193(2).”) Furthermore, Merino has never established a workplace or office in Florida. Merino Dec. § 7. Clearly, Merino does not have the continuous and systematic business contact with Florida to confer general jurisdiction. MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Merino has appeared specially for the limited purpose of contesting issues of service and jurisdiction. To avoid any waiver of arguments, in this section, Merino will summarize its basis for dismissal of claims asserted against him in the Amended Complaint. This section is not intended to extend Merino’s appearance or to seek affirmative relief beyond that which is required to contest jurisdictional issues. If this Court does not dismiss Merino from this action for the reasons stated above, Merino moves to dismiss the claims asserted against him pursuant to Fla. R. Civ. P. 1.140. The allegations in the Complaint fail to support the causes of action asserted against Merino for common law fraud, conspiracy, violation of Florida’s Deceptive and Unfair Trade Practices Act, and for Unjust Enrichment. Counts 10-13, 26, and 28 should be dismissed for the reasons stated herein. I Standard for Dismissal, Generally. Under Florida Rule of Civil Procedure 1.140(b)(6), a pleading’s failure to state a cause of action may be brought on a motion to dismiss. A motion to dismiss under rule 1.140(b) “tests & BARAKAT +BOSSA 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 + Tel: 305-444-3114 » service@b2b.legal whether the plaintiff has stated a cause of action... .” Lonestar Alternative Solution, Inc. v. Leview- Boymelgreen Soleil Developers, LLC, 10 So. 3d 1169, 1171 (Fla. 3d DCA 2009). “When analyzing a motion to dismiss based on [Rule 1.140(b)(6)], a court is limited to a consideration of the four comers of the plaintiffs complaint.” Miller v. Nelms, 966 So. 2d 437, 439 (Fla. 2d DCA 2007). Where “the pleader has failed to state a cause of action and it conclusively appears there is no possible way to amend the complaint to state a cause of action,” dismissal of the complaint with prejudice should be granted. Fla. Nat. Org. for Women, Inc. v. State, 832 So. 2d 911, 915 (Fla. 1st DCA 2002). Similarly, if the “face of the complaint contains allegations which demonstrate the existence of an affirmative defense, . . . then such a defense may be considered on a motion to dismiss.” Kellerman v. Bd. of Trustees of City of Hollywood Firefighters’ Pension Sys., 2022 WL 42760, *1(Fla. 4th DCA Jan. 5, 2022). IL. Count 10 through 12 for Common Law Fraud Should be Dismissed as to Merino Plaintiffs’ Count 10 through 12 for Common Law Fraud against Merino should be dismissed as to Kuschner-Kerns Website Misrepresentations and Merino’s Misrepresentations #1 through #4, #10, and #11. A cause of action for fraud must allege: (1) a representation by the defendant designed to prompt action by the plaintiff, (2) falsity of the representation and the defendant's knowledge of the falsity, and (3) the plaintiff's reliance on the representation to his detriment. Arnold v. Weck, 388 So.2d 269, 270 (Fla. 4th DCA 1980). When fraud is relied upon, “the allegations relating thereto should be specific and the facts constituting the fraud clearly stated.” Kutner v. Kalish, 173 So.2d 763, 764 (Fla. 3rd DCA), cert. denied, 183 So.2d 210 (Fla.1965). Fla. R. Civ. P. 1.120(b), & BARAKAT +BOSSA 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 + Tel: 305-444-3114 » service@b2b.legal requires that the circumstances constituting fraud “shall be stated with such particularity as the circumstances may permit.” Furthermore, a principal is civilly liable for the tortious acts of his agent that are within the scope of agency and motivated, at least in part, by a purpose to serve the principal. Goodman v. Rose Realty W., Inc., 193 So. 3d 86, 87 (Fla. 4th DCA 2016). In order to establish the existence of an agency relationship, three elements are necessary: () acknowledgement by the principal that the agent will act on his or her behalf, (2) acceptance by the agent, and (3) control by the principal over the agent's actions. Abdo vy. Abdo, 263 So. 3d 141, 144 (Fla. 2d DCA 2018) Here, each of the above referenced misrepresentations allegedly attributable to Merino were each made by Defendants Lopez and Kuschner, as alleged agents of Merino. See Am. Compl. 49 33, 40, 42, 44, 65, 76. The Amended Complaint is devoid of any specificity that these alleged statements by Lopez and Kuschner were made within the scope of their agency with Merino, were made with the purpose of serving Merino’s interests, or were made under the control of Merino. Accordingly, Plaintiffs have failed to state a cause of action for common law fraud against Merino. Til. Count 13 for Conspiracy Should be Dismissed as to Merino Plaintiffs’ Count 13 for conspiracy should be dismissed as a result of the intra-corporate conspiracy doctrine. The doctrine provides that “neither an agent nor an employee can conspire with his or her corporate principal or employer.” Richard Bertram, Inc. v. Sterling Bank & Trust, 820 So.2d 963, 966 (Fla. 4th DCA 2002) (quoting Lipsig v. Ramlawi, 760 So.2d 170, 180 (Fla. 3d DCA 2000)). It is not possible for a single legal entity consisting of the corporation and its agents to conspire with itself because a civil conspiracy requires “an agreement between two or more parties.” Mancinelli v. Davis, 217 So. 3d 1034 (Fla. 4th DCA 2017) (citations omitted). Each & BARAKAT +BOSSA 2701 Ponce de Leon Blvd., Suite 202, Coral Gables, FL 33134 + Tel: 305-444-3114 » service@b2b.legal Defendant named in Count 13 for conspiracy is asserted to be an agent or employee of FX. See e.g. Am. Compl. §§ 8-10, 30-33. Accordingly, this Court should dismiss Count 13 for failure to state a claim for conspiracy. Iv. Count 26 for Violation of Florida and Unfair Trade Practices Act Should be Dismissed as to Merino. Count 26 for Violation of Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”) should be dismissed as to Merino for all alleged acts, except for Plaintiffs’ “Website Misrepresentations.” Under FDUTPA “[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful." § 501.204(1), Fla. Stat. “Trade or commerce” is defined as “the advertising, soliciting, providing, offering, or distributing, whether by sale, rental, or otherwise, of any good or service, or any property, whether tangible or intangible, or any other article, commodity, or thing of value, wherever situated.” § 501.203(8), Fla. Stat. Furthermore, “although not specifically identified in the statute, there are basically three elements that are required to be alleged to establish a claim pursuant to the FDUTPA: 1) a deceptive act or unfair practice; 2) causation; and 3) actual damages.” KC Leisure, Inc. v. Haber, 972 So. 2d 1069, 1073 (Fla. Sth DCA 2008). “Finally, as to Section 501.204 of the Florida Statutes, although it appears that this provision may not require proof of actual fraud, the consumer must prove that the seller engaged in “unfair or deceptive acts or practices” to be entitled to relief. The seller's conduct must be unfair or deceptive, and the consumer must be aggrieved by the deception.” Jn re Crown Auto Dealerships, Inc., 187 B.R. 1009, 1018 (Bankr. M.D. Fla. 1995). In order to proceed against an individual using a FDUTPA violation theory, an aggrieved party must allege that the individual was a direct participant in the improper dealings. KC Leisure, & BARAKAT +BOSSA 2701 Ponce