we are in state court, the first part of my argument is that Florida has
asserted personal jurisdiction. The Florida Long Arm Statute, Fla. Stat.
Ann. § 48.193 asserts jurisdiction over both defendants.
Cataldo is subject to jurisdiction
under 48.193(1)(b), (1)(f) and 48.193(1)(g). Cataldo committed a tortious act
within the state under Subsection (b) because, even though he has never been to
Florida, his conduct in New
York and Pennsylvania resulted in
a conversion of White’s jeep when the payment for the jeep was reversed by the
bank, which (hopefully) is in Florida.
It is well established that a tort is not “committed” until conduct resulting
in the last necessary element of the tort occurs. Cataldo will argue that Subsection
(b) requires the presence of the defendant in the forum state, and I would have
to do research into Florida
case law to see how this subsection has been interpreted. If he’s right, I am
out of luck on this argument.
An alternative argument with
respect to the tort of conversion is available under Subsection (1)(f) because Cataldo
caused injury to White who was in Florida at the time he found out that the
defendant was not going to pay for the jeep. (The conversion did not occur
until the payment was nullified.) Cataldo was engaged in solicitation
activities within the state by offering to sell his car to Barton. I would need
some additional factual evidence that Cataldo knew that Barton was in Florida when he offered
to sell the car to her.
We have an independent argument
that Florida has asserted jurisdiction over Cataldo
under Subsection (g) because the contract of sale required Cataldo to pay White
and his nonpayment did not occur until White was in Florida. For this argument, it may matter
less whether White’s bank account was at a Florida bank because wherever the
bank was, the payment was due to be made to White and he was in Florida by
If these statutory arguments are
successful, I also must show that assertion of jurisdiction under these
circumstances under this statute does not violate due process under the
Fourteenth Amendment to the United States Constitution. To do that, I must show
that Cataldo had minimum contacts with the state of Florida and that asserting jurisdiction over
him will not offend fair play and substantial justice. Frankly, this is going
to be a challenge. The only contacts that count in this constitutional analysis
are those intended by the defendant to involve the forum state. Cataldo said he
did not know where White lived, although White’s initial offer to sell the jeep
on v-Bay explicitly stated that he was moving to Florida. So Cataldo at least knew that White
was headed to Florida.
The facts rather clearly indicate that Cataldo intended not to pay White, and
it is a plausible argument that he intended that White would believe that he
had been paid while he was still in Pennsylvania and on his way to Florida and
that the fraud would not become manifest until White was already in Florida.
That is probably my best argument that the contacts were intentional. Cataldo
will argue that it was merely foreseeable to him that White would suffer the
loss in Florida
and that, under World Wide Volkswagen,
forseeability is not enough.
There is no possibility of showing
that Cataldo has systematic and continuous contacts with Florida so there is no way to establish the
constitutionality of general jurisdiction. On the other hand, we don’t need
general jurisdiction because both the breach of contract and the conversion
claim directly arise out of the conduct—nonpayment of a Florida resident.
Cataldo also engaged in contact
by selling the car to Barton. He knew—I hope we can establish—that Barton lived
and would use the automobile there. Selling a chattel to a domiciliary of a
state constitutes a contact with that state. But that contact won’t do White
any good unless he can show that his claims against Cataldo arise out of that
contact. I suppose we could argue that White’s ability to recover from Cataldo
was diminished when Cataldo disposed of the car. Cataldo surely argued that
himself in the telephone conversation with me. But this is a farfetched relatedness
argument and, for specific jurisdiction, the claims must relate to the
I don’t think fair play and
substantial justice is going to be a big issue because, while Florida
is a more convenient place for White than for Cataldo, it’s not that big a deal
for someone to come from New York to Florida to litigate. Florida obviously has an interest in protecting its
residents from conversion and breach of contract, and because the evidence
mostly involves Internet transactions and banking transactions it would not be
a problem to get the evidence into litigation conducted in Florida. Anyway most of the relevant
evidence is on, or accessible from, White’s computer, which is in Florida.
Cataldo will meet these arguments
by denying that he did anything that can be said to relate to Florida. The contract was to be performed in
Even if the breach and the conversion actually occurred in Florida,
Cataldo certainly did not know that White’s bank was in Florida, if that’s where it was. He would
argue that the out of state character of everything that happened defeats both
Florida’s assertion of jurisdiction over him under the statute, and also would
make it unconstitutional to assert jurisdiction with him because he had no
purposeful contacts at all with the state of Florida.
Cataldo will point out that the performance
due under this contract was not at all like the performance due under the
contract involved in Burger King. The
most that was supposed to happen in Florida
under this contact was that the credit card payment would be available for
White to spend. That is a one shot item of performance. In Burger King, the contract called for many things to be done in the
forum state over a considerable period of time. Thus Burger King is weak authority for the constitutionality of personal
jurisdiction in this case.
I think we are
going to have a tough time establishing personal jurisdiction over Cataldo.
On the other hand, establishing
personal jurisdiction over Barton is easy. Barton lives in Florida
and thus necessarily is engaged in “substantial and not isolated activity”
That results in general jurisdiction over her under § 48.193 (2). There is no
constitutional problem with such assertion of jurisdiction under Helicopteros because the contacts are
systematic and general. Moreover, if Justice Scalia’s approach in Burnham prevails, there is categorically
sufficient constitutional jurisdiction over Barton because she was served with
process (or will be soon; see Part (C)) while she was present in the state.
success on venue is almost certain. Because we are in state court, the Florida venue
statute applies, Fla. Stat. Ann. § 47.011. 28 U.S.C. § 1391 is irrelevant.
We sued Barton in the county where she is domiciled, and that is
sufficient for venue against her under § 47.011. Under Linger v. Balfour, Cataldo, a
nonresident, may be sued anywhere the court has jurisdiction. So venue
against him also is proper in the Alachua County
state court. The only problem is that, as set forth in the answer to Subquestion
(A) personal jurisdiction over Cataldo is problematic. But if we don’t
have personal jurisdiction over him, venue will not do us any good so it
doesn’t much matter that personal jurisdiction and venue rise or fall
together against Cataldo.
have, however, big problems with service of process. Service of process on
Cataldo is problematic because service on out-of-state defendants by first
class mail is not authorized by Fla. Stat. Ann. § 48.194 rather, an officer
authorized to serve process must have served him in the same way provided for
service in state under § 48.031, by handing a copy of the summons and
complaint to him or by leaving at his usual place of abode with someone 15
years or older and informing that person of its contents.
Service on Barton also is flawed. §
48.031 says that Barton should have been served by delivering a copy of the
summons and complaint directly to Barton or by leaving it with someone at her
usual place of abode. Instead, the deputy sheriff left it at her workplace.
Unless she lives in her office, which is unlikely, we have not served process
pursuant to Florida
state law. Except for the workplace-being-an-abode, I know of no arguments that
will overcome these deficiencies in service. We will simply have to send a New York deputy sheriff out in New
York and send the Alachua
County deputy sheriff out
again to Barton’s home.
would move to remand the removed action for the absence of subject matter
jurisdiction. If there is some flaw in the way that the notice of removal
was handed we also may have some procedural arguments for remand. For
example, Barton’s lawyer may have failed to send a copy of the removal
notice the clerk of the state court, but nothing in the statement of the
question suggests that.
Removal jurisdiction exists under §
1441 only if the district court to which the case is removed would have had
federal-question, diversity, or supplemental jurisdiction over the claims if
the action had been filed there in the first place. We have strong arguments
that diversity jurisdiction does not exist, and if it did exist, Barton
nevertheless may not remove the case under 28 U.S.C. § 1441 (b). We will argue
that White is now a citizen of Florida, which defeats complete diversity since
that would make defendant Barton and plaintiff White citizens of the same
state. What matters is citizenship at the time the lawsuit was filed
(presumably when it was removed to federal court—not when the claim arose; I
would want to check this). Citizenship depends on domicile, which in turn
depends (citizenship is a matter of federal law not state law) White is clearly
present in Florida and the only question is
whether he has the intent to make this his domicile or whether his intent is to
retain his domicile in Ohio.
Barton will of course argue that by leaving some of his possessions in Ohio, he evidenced an intent to continue Ohio as his domicile and only to stay in Florida temporarily to
perform the one-year employment term. Even if Barton can sustain her position
that White is a citizen of Ohio
and therefore there is complete diversity, we can establish—and indeed we have
the power to make sure—that the jurisdictional amount of $75,000 is not
satisfied. The accepted payment for the jeep was $20,000, and even if we can
prevail on our conversion and federal wire fraud claims which presumably would
entitled us to punitive damages, it is unlikely that total damages would be
more than $75,000. Moreover, we can make sure of that by amending our complaint
to seek damages not exceeding $75,000. That would require some tradeoff, of
course, between the amount of money that White seeks, and his desire to be in
state court, but that is entirely within our control.
Our ace in the hole is that Barton
is not entitled to remove a case founded solely on diversity because she is a
citizen of the forum state, under Section 1441(b)
We also have to consider the
possibility that there may be federal question jurisdiction because of
Paragraph 15 of our complaint, asserting the federal wire fraud claim. This is
going to be a big problem for us because we have definitely pleaded a legal
claim premised on federal law. The federal law, of course, only explicitly
provides for criminal penalties, but our theory that it impliedly recognizes a
private right of action goes to the merits. We would say that under Merrill Dow, this is exactly the kind of
federal question claim that results in federal question jurisdiction, unless it
is completely frivolous on its face. This is not like the facts of the Merrill Dow case itself where federal
question jurisdiction was found not to exist because the claim was not premised
on federal law. Here we are not saying that an issue of federal law is somehow
intertwined with the state-law conversion and breach of contract action, but
rather that we have an independent claim for wire fraud that is created by
But even if the federal wire fraud
claim has to stay in federal court, we have pretty good arguments that the
conversion and breach of contract claims, especially those against Barton,
should be remanded to state court because supplemental jurisdiction under 28
U.S.C. § 1367 does not extend to them. Supplemental jurisdiction requires a
common nucleus of operative fact between the “anchor claim”—the claim as to
which diversity exists or the federal question claim, and we would argue that
it does not exist here. The elements of wire fraud are distinct from the
elements of conversion and breach of contract. For example, intent not to
perform is not an element of breach of contract, while it is for fraud. Offer
and acceptance are elements for breach of contract and they are not for fraud.
Detrimental reliance is an element of fraud but not for breach of contract. And
the elements for conversion and fraud are almost entirely distinct. And there
is even less commonality between the claims against Barton and the wire fraud
claim against Cataldo because we have not even asserted wire fraud against
Barton, and her alleged conversion of the jeep occurred at a completely
different time, after the transaction between White and Cataldo was complete.
On the other hand, the jeep itself
is common to everything, all of the claims against Cataldo arise from the same
factual transaction—the posting of the jeep on v-Bay, the negotiations by
email, and the meeting in which the automobile, the bill of sale, and the
credit card information were exchanged (actually the credit card information
was sent ahead of time by email, but that doesn’t matter). So an expansive view
of Section 1367’s “same case or controversy” would likely result in a finding
that supplemental jurisdiction extends at least to the state law claims against
Cataldo and maybe also to the state law claims against Barton.
But we have two other aces up our
sleeve. First, there is no indication that Cataldo joined in the notice of
removal, and that is a prerequisite for valid removal even for a federal
question claim where a resident of the forum state is entitled to remove, but
only if she is joined by all the other defendants.
Moreover,—this is our final ace in
the hole—if we do not want to litigate in federal court, we simply can amend
the complaint to withdraw the wire fraud claim as well as limiting our damages
claim as mentioned earlier. Again, that presents us with a strategic choice:
whether we want the punitive damages that may be available for the wire fraud
claim and not for the two state law claims more than we want to be in state
court or vice versa. But this is entirely under our control.
- If we
are bounced out of state court in Florida,
we have several alternatives. We could fix the service of process problem,
if that’s what got us bounced. We can’t fix the personal jurisdiction
problem with respect to Cataldo and Florida.
So it won’t do us any good if we refile in federal court in Florida.
So we should look elsewhere. Ohio might be tempting with respect to Cataldo except
that he may have had less knowledge that White began in Ohio
than that White was destined for Florida.
Moreover, there is little basis for arguing that Barton had any contact with Ohio whatsoever. So it
looks like we would have insuperable personal jurisdiction problems in Ohio.
That leaves Pennsylvania
and New York as candidates. Pennsylvania
probably would be okay for the suit against Cataldo because the exchange of the
automobile and the bill of sale took place in Pennsylvania. But Barton had nothing to with
So the best bet is to sue both
Cataldo and Barton in New York. That’s where
Cataldo lives, so general jurisdiction exists over him there under any conceivable
New York jurisdictional law, and it is plainly
constitutional. And we have good personal jurisdiction arguments with respect
to Barton because she traveled to Buffalo,
New York to pick up the
automobile. That’s clearly a contact with New York,
directly related to the conversion claim against her. New
York presumably asserts jurisdiction in such circumstances and the
jurisdiction plainly would satisfy minimum contacts and fair play and
So then the only remaining
questions are whether we should sue in federal or state court in New York, and whether we should split our action into two
separate lawsuits. I don’t see any particular advantage from suing in New York federal court as opposed to New
York state court, and if we sue in federal court we are going to
have the same subject matter jurisdiction arguments that we mobilized in an
effort to get the case remanded to state court in Florida
from federal court in Florida.
So if we want to sue Cataldo and Barton in the same lawsuit, as the question
suggests, we should do it in state court in New York.
Another possibility if we don’t
want to keep both defendants together in the same lawsuit is to sue Cataldo in
state court in either Pennsylvania or New York, and keep our lawsuit against Barton
in state court in Florida where there plainly is personal jurisdiction over
would tell my associate that the main problem with his Paragraph 15 is
that it does not meet the requirements of Fed. R. Civ. P. 9 if we are federal
court. If we are in Florida state court,
I’m concerned that Florida
state procedure may require fact pleading instead of the more relaxed
notice pleading requirement exemplified by Federal Rule 8. In any event it
can do us little harm to revise this allegation of wire fraud by
particularizing it: identifying the specific communications that we say
were fraudulent, which surely include the agreement to buy the car and the
transmittal of the fraudulent credit card information, the dates on which
they occurred, and, probably, the resulting bank action in reversing the
I also would discuss with the
associate whether we want to leave ourselves open to removal to federal court
by keeping Paragraph 15 in our complaint, because we surely have learned that
it may be a problem for us to get a federal claim remanded, in my answer to
may be tough to get a preliminary injunction, even though preliminary
injunctions are authorized by Fed. R. Civ. P 65. Of course, a preliminary
injunction cannot be granted until both sides have been heard but that
doesn’t seem to be a problem here because both defendants have appeared in
the lawsuit and their lawyers should not be hard to contact. The biggest
problem is that White may be unable to establish one of the jurisdictional
prerequisites for an injunction—the insufficiency of legal relief. He can
hardly claim that he wants the jeep. He sold it already, so what he really
wants is his $20,000 and maybe some additional damages. That’s money. And
a money judgment for damages would be better suited to give him what he
wants than the return of the jeep.
Indeed, the only conceivable way
that he could make an irreparable injury argument (another equitable
prerequisite) at this stage is on the grounds that both Barton and Cataldo are
so impoverished or so slippery that they are judgment proof and the only way to
ensure his practical ability to get anything out of a judgment in his favor is
to make sure assets are available at the time he gets a judgment. He has fairly
strong probability of success on the merits. Its not that Barton would be
terribly inconvenienced by having to hang on to the car while the lawsuit is
proceeding. It’s not like White was trying to get an injunction compelling her
never to drive the car or to turn it over to him right now. And there is no
public interest either way.
So our best argument—and it’s still
something of a long shot—is to say that we would be happy with legal remedies,
but we are not going to get any legal
remedies unless the injunction is granted because there will be no money or
other property to execute a judgment against.
would notice the parking attendant for a deposition under Rule 30 and
request production of documents and things under Rule 34 and back them up
by a subpoena under Rule 45, pursuant to Rules 30(a) and 34(c). Absent a
subpoena, the parking attendant, a nonparty, could not be compelled to
make discovery. In the deposition I would ask the parking attendant what
he saw, the basis for his belief that the driver of the suburban
deliberately drove over the motorcycle, whether there were any other
witnesses, and if so, their identities, and whether there was a security
camera that might have video of the incident. I also would ask him in
detail about the driver’s behavior before, during, and after the incident
and in particular whether there was anything about the vehicle or about
the driver’s behavior that suggested any connection with terrorist
the Chicago Police Department is a nonparty the only way to compel it to
give up the accident report is through a Rule 45 subpoena, perhaps coupled
with a Rule 34 request for production, although the Rule 34 request is not
necessary if I serve a subpoena. I also might be interested in subpoenaing
the officers who conducted the investigation, after ascertaining their
identities from the police department, so that I could depose them. I also
would request in a subpoena copies of any 911 tapes of the call. Both the
officers and the 911 tapes may provide information not contained in the
would amend the complaint to substitute Sebastian Corwin and Jamie Corwin
for the John Doe defendant. Then, as parties, they can be compelled under
Rule 37 to make discovery under any of the usual methods.
need not ask about any insurance policies because I will get that in the
mandatory Rule 26(a)(1) disclosures after we have had our Rule 26(f)
discovery conference. I would ask Sebastian about:
he gave Jamie permission to drive the Suburban on the date in question. This
would help me establish that Jamie was his agent or that he negligently gave
Jamie access to the vehicle.
nature and location of his assets.
nature and location of Jamie’s assets and the nature and location of his
he or Jamie have talked to anyone about the accident and if so, who they are.
Jamie or he is a member of any organization that might be considered terrorist
I would ask the question about
assets and employment in interrogatories because I would be likely to get more
precise answers. I would ask the other questions in a deposition because I can
press Sebastian more readily for responsive answers and gauge his veracity and
his likely suitability as a witness for his version of the events.
would ask Jamie:
Jamie’s assets and employment, seeking details about location.
he had his father’s permission to use the Suburban on the day in question.
he deliberately drove over the motorcycle and if he claims it was not
deliberate, what precautions he took to make sure the motorcycle was not in the
way. This would help me establish liability for conversion or negligence.
identity of anyone he talked to about the accident or anyone who witnessed it.
he is a member or otherwise affiliated with any organizations that might be terrorist
I would ask about his assets in
interrogatory form because I would be more likely to get precise answers. All
the other questions I would ask in a deposition because I would be in a
position to press for more responsive answers and to gauge his strengths and
weaknesses as a possible witness.
would be hugely worried about Rule 11 sanctions for my cavalier inclusion
of the war crimes allegation in the complaint. I know nothing about the
War Crimes Act and had no reasonable basis for believing that it was valid
legal claim. I conducted no investigation (though I am now, in discovery) to
see whether there was any factual basis for claiming that either of the
defendants was associated with a terrorist organization.
Even without a motion under Rule
11, I would be ready to amend the complaint to withdraw the war crimes
allegation unless I conduct immediate legal research that shows that there
might be legal basis for a claim and unless my discovery questions elicit
answers that suggest that there might be some factual basis for such an
If I am confronted with my
obligations under Rule 11, I will have 21 days after service on me of a Rule 11
motion to withdraw the claim, pursuant to Rule 11(c)(1)(A). If, however, the
court initiates Rule 11 proceedings I have no 21-day safe harbor.