Motion to Dismiss in MY FLY PAGE LLC vs. COLLINS, JOANNE| Trellis.Law

On May 31, 2017 a Motion,Ex Parte was filed involving a dispute between My Fly Page Llc, and Joanne Collins, in the District Court of Orange County.

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Filing # 63443225 E-Filed 10/27/2017 04:07:56 PM

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT,
IN AND FOR ORANGE COUNTY, FLORIDA

MY FLY PAGE, LLC, a Florida
Limited liability company,

Plaintiff,

vs. CASE NO.: 2017-CA-004887-O

JOANNE COLLINS,

Defendant.
_______________________________________/

DEFENDANT’S MOTION TO DISMISS

The Defendant, Joanne Collins, by and through her undersigned counsel, pursuant to

Rule 1.140(b)(2) of the Florida Rules of Civil Procedure, moves to dismiss this action for lack of

personal jurisdiction. Defendant’s sworn statement in support of this Motion is filed

contemporaneously herewith and cited throughout this Motion as “Collins.” Defendant further

states:

1. Defendant is a citizen and resident of the United Kingdom. (Collins ¶2). She has

never been to Florida. (Collins ¶ 3).

2. In its Complaint, Plaintiff alleges that Defendant was the Chief Executive Officer

of Plaintiff, that she entered into a contract with Plaintiff, and that she materially breached that

contract. Plaintiff seeks damages (Count I) and declaratory relief (Count II).

3. In paragraph 10 of the Complaint, Plaintiff alleges “Defendant’s main

responsibility was the design, implementation, and oversight of the launch of a travel website,

www.trutripper.com.” This allegation is incorporated in both counts of the Complaint, and it

forms the gravamen of Plaintiff’s claims against Defendant.

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4. The TruTripper website was launched on January 10, 2017. (Collins ¶ 22). It is

exclusively intended for residents of the United Kingdom. (Collins ¶¶ 24 and 25 and Ex. A).

Users can book travel, create reviews, share those reviews on social media, and then earn credits

(“TruCredits”) for future travel. (Collins Ex. B). The sole audience for the website is residents of

the United Kingdom. (Collins ¶¶ 24 and 25 and Ex. A). Prices on the website are shown in

British Pounds. (Collins Exs. B and D). Likewise, the redemption value of credits earned is in

British Pounds. (Collins Ex. B).

5. The following information from www.trutripper.com is as of the date Plaintiff

commenced this action1 and is relevant to this matter:

A. According to the Website Terms of Use, the website is operated by “My

Fly Page Ltd trading as TruTripper.” A copy of the Website Terms of Use is attached to

Defendant’s sworn statement as Exhibit “A.” Significantly, My Fly Page Ltd is not the Plaintiff

in this case. My Fly Page Ltd is an English Limited Company with its principal office in the

United Kingdom. (Collins ¶¶ 11 and 12).

B. The Website Terms of Use also state that www.trutripper.com is “directed

to people residing in the United Kingdom.”

C. The Website Terms of Use further state “[t]hese terms of use, itssubject

matter and its formation, are governed by English law” and “[y]ou and we both agree to that the

courts of England and Wales will have exclusive jurisdiction over any disputes that may arise out

of these terms of use.”

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The materials referenced in paragraph 5 of this Motion were removed from the website after August 4, 2017; the
precise date of which is unknown to Defendant. As of the date this Motion is filed, visitors to www.trutripper.com
are presented with the message “See you in 2018.” There are also links to Twitter, Instagram, Facebook, and
Pinterest, with location references to the United Kingdom and prices shown in British Pounds.

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D. To join the website’s Reward Scheme and earn TruCredits, “you must

TruTripper Members Account, “you must be at least 18 years of age and a resident in the United

Kingdom.” A copy of the “TruCredit Reward Scheme–Terms and Conditions” is attached to

Defendant’s sworn statement as Exhibit “B.”

E. Pursuant to clause 10.5 of the TruCredit Reward Scheme – Terms and

Conditions, “[t]hese TruCredit Terms and Conditions and any agreement to which they apply are

governed in all respects by English law.” Clause 10.5 further provides “[w]e both agree that any

dispute, claim or other matter which arises between us out of or in connection with your contract

or booking will be dealt with by the Courts of England and Wales only.”

F. The website’s Privacy and Cookies Policy is governed by English law

(specifically, the Data Protection Act 1998). It specifies that the data controller is My Fly Page

Ltd. of the United Kingdom. The Privacy and Cookies Policy further states that “the [Data

Protection] Act gives you the right to access information held about you” and that “your right of

access can be exercised in accordance with the [Data Protection] Act.” A copy of the Privacy and

Cookies Policy is attached to Defendant’s sworn statement as Exhibit “C.”

G. The website’s Booking Terms and Conditions specify that website users

are contracting with “My Fly Page Limited trading as TruTripper” with its registered office in

the United Kingdom. Only residents of the United Kingdom are able to make bookings using

www.trutripper.com. Written complaints are directed to the company’s Customer Services

Department in Manchester, England. A copy of the Booking Terms and Conditions is attached to

Defendant’s sworn statement as Exhibit “D.”

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H. Pursuant to clause 23 of the Booking Terms and Conditions, “[t]hese

Booking Conditions and any agreement to which they apply are exclusively governed in all

respects by English law.” Clause 23 further provides “[w]e both agree that any dispute, claim or

other matter which arises between us out of or in connection with your contract or booking will

be subject to the exclusive jurisdiction of the Courts of England and Wales.”

6. The principals of the My Fly Page business entities (the Florida LLC and the

English Limited Company) are Shawn Michael Scheeringa of the United States and Sheraz

Majeed of the United Kingdom. A third company, Trutripper Limited, was incorporated by Mr.

Majeed exclusively on January 19, 2017 – nine days after the website was launched – at the same

address where Defendant worked.

7. Mr. Scheeringa recruited Defendant because of her substantial experience in the

travel industry. (Collins ¶¶ 4 and 5). During their negotiations, Defendant was working in Spain

for another company. (Collins ¶¶ 6 and 7). Thus, as reflected in Exhibits 1 and 2 to the

Complaint, Mr. Scheeringa offered particular terms to Defendant to provide her “a floor and

safety net” in the event his “start-up travel agency” did not succeed, including his promise that

“your execution of this letter will bind … me personally to the terms contain [sic] here within.”

In reliance thereon, Defendant left an enviable position with another employer to join My Fly

Page. (Collins ¶¶ 8-10).

8. Defendant’s salary was paid by My Fly Page Ltd., the English Limited Company,

into her bank account in the United Kingdom. (Collins ¶ 13). All employment taxes were

handled and processed in England under the laws of the United Kingdom. (Collins ¶ 17).

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9. Defendant performed all her work in and from the United Kingdom. (Collins ¶

18). Although Mr. Scheeringa is based in the United States, all of his in-person meetings with

Defendant were in the United Kingdom. (Collins ¶ 19).

10. As CEO, Defendant was not required to perform any act in the State of Florida.

(Collins ¶ 21). As stated in Exhibits 1 and 2 to the Complaint, Defendant’s “home base” was

Manchester, England.

11. Further, as CEO, Defendant did not choose to conduct any business in Florida.

(Collins ¶ 30). By way of example, Exhibit 3 to the Complaint refers to a number of vendors and

other companies with which Defendant conducted business on behalf of My Fly Page. Of these,

none is in Florida. (Collins ¶ 31). Trello is based in New York. TrustYou has many offices

worldwide, including one in California. All of the other vendors and companies referenced in

Exhibit 3 to the Complaint (specifically, Call Care, Digital Trip, Firecask, Pay Academy, and

Napthen’s) are in the United Kingdom.

12. Defendant has never been to Florida. (Collins ¶ 3). She does not have any bank

account in Florida or own any property in Florida. (Collins ¶¶ 32 and 33).

13. “TruTripper” is not registered in Florida as a fictitious name.

14. Based upon the foregoing, as supported by Defendant’s sworn statement filed

contemporaneously herewith, and for the reasons set forth in the following memorandum of law,

Defendant maintains that this Court does not possess personal jurisdiction over her. As a result,

Defendant respectfully submits the action must be dismissed.

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MEMORANDUM OF LAW

Under Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989), there is a two-step

inquiry to determine whether a Florida Court has personal jurisdiction over a nonresident

defendant. First, the Court must determine whether the plaintiff has alleged sufficient

jurisdictional facts to bring the action within the ambit of Florida’s long-arm jurisdiction statute,

which is Section 48.193 of the Florida Statutes. Venetian Salami, 554 So. 2d at 502. If this is

satisfied, then the second step is for the Court to determine whether the nonresident defendant

has sufficient “minimum contacts” with Florida to satisfy due process requirements. Id. “[A]

court is permitted to consider evidence outside the four corners of the complaint where the

motion to dismiss challenges … personal jurisdiction.” Steiner Transocean Ltd. v. Efremova, 109

So. 3d 871, 873 (Fla. 3d DCA 2013) (citing Venetian Salami).

Long-Arm Jurisdiction

In paragraph 5 of the Complaint, Plaintiff alleges two grounds for establishing personal

jurisdiction under the long-arm statute. Neither is sufficient under Section 48.193 of the Florida

Statutes.

1. Conducting Business in Florida

Plaintiff first alleges in paragraph 5 of the Complaint that Defendant “has operated,

conducted, engaged in, or carried on a business or business venture, namely the Plaintiff, which

has an office in this state.” Defendant denies these allegations and submits they are insufficient

to establish personal jurisdiction under Section 48.193(1)(a)1 of the Florida Statutes.

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Defendant has never been to Florida. She does not have any office in this state (or in the

United States for that matter). She physically performed all her work for My Fly Page in and

from the United Kingdom. She was paid for this work by an English company (My Fly Page

Ltd.) from its UK bank account into her bank account in the United Kingdom.

In addition, all of Defendant’s in-person meetings with the principals of My Fly Page

occurred in the United Kingdom. To the extent Defendant communicated electronically or by

telephone into Florida, these communications do not automatically constitute “conducting

business” in Florida. Horizon Aggressive Growth, LP, v. Rothstein-Kass, P.A., 421 F.3d 1162,

1167 (11th Cir. 2005); see also Stonepeak Partners, LP, v. Tall Tower Capital, LLC, 2017 U.S.

Dist. Lexis 11519, 42 Fla. L. Weekly D 1761 (Fla. 2d DCA 2017) (holding that defendant did

not engage in business venture in Florida where defendant made numerous calls and emails into

state, as well as three visits to state over ten months). Instead, “the nature” of the calls and emails

“must be examined.” Canale v. Rubin, 20 So. 3d 463, 469 (Fla. 2d DCA 2009).

It is apparent from the facts set forth above that www.trutripper.com is intended

exclusively for British residents. When Defendant engaged in telephone or electronic

communications, the purpose was to develop a website for British travelers and generate revenue

from it. Defendant’s alleged obligations around the website and her alleged failures to meet those

obligations are the core of Plaintiff’s Complaint. As a result, applying Horizon, Stonepeak, and

Canale, there is no “connexity” between Plaintiff’s causes of action and Defendant’s activity

directed to Florida. By extension, there is no basis for long-arm jurisdiction under Section

48.193(1)(a)1. See Aegis Defense Services, LLC, v. Gilbert, 222 So. 3d 656, 661 (Fla. 5th DCA

2017) (reversing order denying motion to dismiss for lack of personal jurisdiction).

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On these facts, contrary to Plaintiff’s allegations, this Court does not have personal

jurisdiction over Defendant based upon Section 48.193(1)(a)1 of the Florida Statutes.

2. Alleged Failure to Perform Required Acts in Florida

Plaintiff further alleges in paragraph 5 of the Complaint that Defendant “has breached a

contract in this state by failing to perform acts required by the contract to be performed, at least

in part, in this state.” Defendant denies this allegation and submits it is insufficient to establish

personal jurisdiction. More specifically, Defendant could not have breached any contract in

Florida within the meaning of Section 48.193(1)(a)7 of the Florida Statutes because she was not

obligated to perform any act in Florida.

The subject contract is attached to the Complaint as Exhibits 1 and 2. It does not require

Defendant to perform any act in Florida – or in any other particular location for that matter. To

the contrary, it states that Defendant’s “home base will be Manchester, U.K.” The contract also

established Defendant’s salary, bonus, healthcare allowance, housing allowance and pension

contribution, all in British Pounds (GBP) and provided for “normal government holidays in the

UK.”

Further, the specific allegations forming the basis for Plaintiff’s Complaint do not touch

or concern Florida. Instead, they arise from conduct that occurred in the United Kingdom or was

directed to its residents exclusively. The “parking expenditures” referenced in paragraphs 15B

and 19B of the Complaint relate to parking in Manchester, England. The “outsourced call center”

referenced in paragraphs 15C and 19C of the Complaint is in the United Kingdom. The dispute

over “working locations” referenced in paragraphs 15H and 19H of the Complaint, as well as

Exhibit 3 to the Complaint, refers to home and office locations in Manchester, England. The

company bank account referenced on page 16 of Exhibit 3 to the Complaint is in the United

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Kingdom. Finally, as more fully set forth above, the TruTripper website is directed and intended

exclusively for British travelers.

On these facts, contrary to Plaintiff’s allegations, this Court does not have personal

jurisdiction over Defendant based upon Section 48.193(1)(a)7 of the Florida Statutes.

For the foregoing reasons, Plaintiff has not alleged sufficient jurisdictional facts to bring

the action within the ambit of Section 48.193 of the Florida Statutes. As a consequence, the

action should be dismissed for lack of personal jurisdiction.

Minimum Contacts

Even if this Court determines that Plaintiff has alleged sufficient jurisdictional facts under

Section 48.193 of the Florida Statutes, which Defendant does not concede, the action should still

be dismissed for lack of personal jurisdiction because Defendant does not have sufficient

“minimum contacts” with Florida to satisfy due process. The essence of minimum contacts is

whether maintenance of the suit offends “traditional notions of fair play and substantial justice.”

International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

In paragraph 6 of the Complaint, Plaintiff alleges “Defendant has purposely availed

herself of the privilege of conducting activities within the State of Florida, and her conduct and

connection with Florida are such that she should reasonably anticipate being haled into court in

Florida.” Defendant denies these allegations and submits that the facts are inadequate to

demonstrate minimum contacts.

As a preliminary matter, Exhibits 1 and 2 to the Complaint state “[t]his letter is subject to

the laws of the State of Florida.” Without more, this statement is insufficient to demonstrate

minimum contacts with Florida that would satisfy due process. Bohlander v. Robert Dean &

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Associates Yacht Brokerage, Inc., 920 So. 2d 1226, 1228 (Fla. 4th DCA 2006) (reversing order

denying motion to dismiss).

It must also be noted that Defendant did not contractually submit to the jurisdiction of the

Florida Courts. Likewise, she did not agree to litigate in Florida. The subject contract does not

contain any consent to jurisdiction, forum, or venue. It simply states “[t]his letter is subject to the

laws of the State of Florida.” In this regard, Exhibits 1 and 2 to the Complaint are in stark

contrast to the TruTripper website, which, as of the date this action was commenced, stated in at

least three separate places that the website terms are governed by English law and the courts of

England and Wales shall have exclusive jurisdiction over any dispute, claim or other matter.

Further, Plaintiff’s status as a Florida limited liability company is insufficient to establish

Defendant’s minimum contacts with Florida. Indeed, there is a clear disconnect between the

State of Florida and Defendant’s role within My Fly Page. Defendant physically worked from

the United Kingdom on a website intended only for the British traveling public. She was paid by

an English company from its UK account into her bank account, which is also in the United

Kingdom. Plaintiff’s principal, Mr. Scheeringa, sought out and recruited Defendant in Europe.

He documented in Exhibits 1 and 2 to the Complaint that Defendant’s “home base will be

Manchester, U.K.” On these facts, it cannot be said that Defendant’s connection with Florida was

such that she should reasonably anticipate being haled into court here. See Moro Aircraft

Leasing, Inc., v. Int’l Aviation Marketing, Inc., 206 So. 3d 814 (Fla. 2d DCA 2016) (reversing

order denying motion to dismiss and remanding for dismissal where Florida plaintiff solicited the

nonresident defendant, the subject contract “did not require substantial services to be performed

in Florida,” and the nonresident defendant did not “set foot in Florida”).

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In addition, Defendant’s contacts with Florida are insubstantial. She has never been to

Florida, does not maintain a bank account here, and does not own any property in the state. As

CEO, she did not have access to any company bank account in the United States, and she did not

work with any Florida vendors. With regard to internal My Fly Page communications, all of

Defendant’s in-person meetings with Mr. Scheeringa were in England. When Defendant engaged

in telephone or electronic communications, the purpose was to develop a website for British

travelers and generate revenue from it.

Moreover, on the facts of this particular case as detailed herein, there is no connection to

speak of between Plaintiff’s alleged causes of action and Defendant’s insubstantial contacts with

Florida. Applying the language of Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985), it

cannot be said that Plaintiff’s causes of action “arise out of or relate to” any activity that

Defendant purposely directed into Florida.

Finally, an analysis of minimum contacts calls for the Court to evaluate not only the

terms of the alleged contract, but also contemplated future consequences and the parties’ actual

course of dealing. Hartcourt Cos. v. Hogue, 817 So. 2d 1067, 1071 (Fla. 5th DCA 2002). This

compels an analysis of two matters raised in Exhibits 1 and 2 to the Complaint. First, the exhibits

contain a statement that “[i]f it becomes necessary to relocate to Orlando, FL all compensation

will be converted to [U.S. Dollars] at the then prevailing rate.” This statement is conditional.

Defendant was not obligated to relocate, and relocation to Florida was not discussed thereafter.

(Collins ¶ 34). Second, Mr. Scheeringa and Plaintiff made a number of promises to Defendant

regarding a 10% share in the business and Defendant’s right to sell her share to Mr. Scheeringa

for $200,000. These promises were memorialized in Exhibits 1 and 2 to the Complaint.

However, Defendant never received her 10% share or any portion of the $200,000. (Collins ¶¶

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35 and 36). Under the circumstances presented, Defendant’s prospective right to a share in the

business cannot be, and should not be, used against her for purposes of personal jurisdiction. In

Stonepeak, for example, the appellate court reversed and remanded for dismissal, without

reaching the issue of minimum contacts, based in part on a finding that the defendant’s 17%

ownership interest “does not equate with [defendant] doing business in Florida.” 2017 U.S. Dist.

Lexis 11519 at *14-15, 19.

Based upon the foregoing, Defendant does not have sufficient minimum contacts to

satisfy due process. As such, this Court does not have personal jurisdiction over her, and the

action should be dismissed.

WHEREFORE, Defendant Joanne Collins respectfully requests that the Court dismiss

this action, with prejudice, for lack of personal jurisdiction and enter such other and further relief

as the Court deems just and proper.

Dated October 27, 2017.

Respectfully submitted,

/s/ Jeff Hammer
Jill S. Schwartz, Esquire
Florida Bar No. 523021
Jeffrey S. Hammer, Esquire
Florida Bar No. 26181
JILL S. SCHWARTZ & ASSOCIATES, P.A.
655 W. Morse Boulevard, Suite 212
Winter Park, Florida 32789
Telephone: (407) 647-8911
Facsimile: (407) 628-4994
jschwartz@schwartzlawfirm.net
jhammer@schwartzlawfirm.net

Attorneys for Defendant, Joanne Collins

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CERTIFICATE OF SERVICE

I certify that I furnished a copy of the foregoing by Electronic Case Filing on October 27,

2017, to Sally R. Culley, Esquire, Rumberger, Kirk & Caldwell, P.A., P.O. Box 1873, Orlando,

FL 32802-1873.

/s/ Jeff Hammer
Jeffrey S. Hammer
Florida Bar No.: 26181

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Lisa T. Munyon Track Judge’s New Case

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Document Filed Date

October 27, 2017

Case Filing Date

May 31, 2017

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Status

Closed

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Motion,Ex Parte: MY FLY PAGE LLC vs. COLLINS, JOANNE

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