Redrock Trading Partners LLC et al v. Baus Management Corporation et al, No. 1:2013cv00043 - Document 35 (S.D. Ga. 2014)

Court Description: ORDER granting 24 Motion to Dismiss; denying as moot 25 Motion to Dismiss. Plaintiffs are Ordered to show cause within ten (10) days from the date of this Order as to why the Court should not dismiss the remaining defendants without prejudice for want of personal jurisdiction. Defendant Franz Baus is dismissed without prejudice. Signed by Judge J. Randal Hall on 10/10/2014. (thb)

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Redrock Trading Partners LLC et al v. Baus Management Corporation et al Doc. 35 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION REDROCK TRADING PARTNERS, LLC * and COMAAR CAPITAL INTERNATIONAL * CORPORATION, * * Plaintiffs, * * v. * CV 113-043 * BAUS MANAGEMENT CORPORATION; * B.A.U.S. * SP. Z O.O.; B.A.U.S. ADVANCED TECHNOLOGIES SP. MONIKA ANNA BAUS; Z O.O.;* and FRANZ * JOSEF BAUS, * * Defendants. * ORDER Presently pending before the Court is Defendant B.A.U.S. Advanced Technologies' ("B.A.U.S. AT") motions to dismiss for lack of personal jurisdiction (Doc. 24) and insufficient process and service of process (Doc. 25). B.A.U.S. AT's jurisdiction motion is to GRANTED For the reasons stated below, dismiss and its for motion lack to of personal dismiss for insufficient process and service of process is DENIED AS MOOT. Additionally, and pursuant to this Court's order dated August 4, 2014 (Doc. 34), Defendant Franz Josef Baus is hereby DISMISSED WITHOUT PREJUDICE. Finally, Plaintiffs shall have TEN (10) DAYS from the date of this Order to SHOW CAUSE as to why the Court should not dismiss without prejudice the remaining defendants for lack of personal jurisdiction. I. On March 8, Capital 2013, International BACKGROUND Redrock Trading Partners filed their complaint against Defendants Baus Management Corporation ("Baus Management"), Monika Anna breach of is the B.A.U.S. Baus, Corporation LLC and Comaar sp. and z Franz o. of Baus o ("B.A.U.S."), Josef contract and fraud. President ("Plaintiffs") Baus (Doc. 1, Management shareholder of B.A.U.S. AT. (Compl. alleging "Compl.") and an K 6.) dispute arises out of three contract was entered into on May 8, Baus Management, for eighty percent is a (Id. 1 7.) The first by Comaar Capital and represented by Monika Baus. In this contract, claims Monika Baus contracts. 2008, AT, Franz Baus member of the management board of B.A.U.S. AT. The B.A.U.S. (Compl., Ex. A.) Baus Management retained Comaar's services to obtain capital investment up to $6,000,000.00, and Comaar was to receive ten percent of the amount Baus Management received from investors as its fee. (Id.) The contract contained following forum selection clause: The Company irrevocably consents to the jurisdiction of the courts of the Quebec and Canada and of any federal court located in such State in connection with any action or proceeding arising out of, to, this Agreement, any document or or relating instrument the delivered pursuant to, in connection with, simultaneously with this Agreement, or a breach this Agreement or any such document or instrument. or of (Id.) In the second contract dated September 3, 2008, Baus Management retained Redrock Trading Partners' services to obtain capital investment up to $6,000,000.00, with a fee for Redrock equal to six percent of the amounts received. The final contract was entered into by (Id. , Ex. B.) Plaintiffs Baus on behalf of Baus Management on September 3, Ex. C.) This third contract was and Monika 2008. a "Non-Circumvent (Id. , Agreement" whereby the parties agreed that all corporations, including all divisions, subsidiaries, employees, agents, or consults would not enter into any transaction with any other party so as to prevent any party from receiving fees, etc. profits, commissions, (Id.) Defendant Monika Baus filed her answer on December 4, 2013 (Doc. 6), and a motion to dismiss under Rule 4(m) of the Federal Rules of Civil Procedure on December 11, 2013 (Doc. 8) . In Ms. Baus' answer, she asserts that neither personal jurisdiction nor venue is proper before this Court. (Id.) B.A.U.S. AT filed an identical motion to dismiss on December 11, motions Defendant (Doc. 9.) were denied B.A.U.S. AT on August filed its 4, 2014. answer 2013, (Docs. on December and both 8, 34.) 23, 2013. Thereafter, Defendant B.A.U.S. AT moved for, and was granted, leave motions. to file (Docs. 18, amended and supplemental 21.) Defendant MOTION TO DISMISS and AT B.A.U.S. current motions to dismiss on June 2, 2014. II. pleadings its filed (Docs. 24, 25.) STANDARD "In the context of a motion to dismiss for lack of personal jurisdiction in which no evidentiary hearing is held, the plaintiff bears the burden of establishing a prima facie case of jurisdiction over the movant, nonresident defendant." SSE, Inc., 843 F.2d 489, 492 (11th Cir. 1988) . Morris v. The plaintiff establishes a prima facie case by presenting "enough evidence to withstand F.2d a motion 1510, evidence forth that 1514 to for (11th reasonable Walker v. 1995). Cir. verdict." 1990). A Madera party v. Hall, presents withstand a motion or directed verdict "substantial impartial directed evidence ... of and judgment Nations The fair-minded might Bank of facts reach persons in in the the enough by putting quality different Fla. , 53 presented such 916 and weight exercise of conclusions . . ." F.3d 1548, 1554 plaintiff's (11th Cir. complaint are taken as true to the extent they are uncontroverted. Foxworthy v. (N.D. Ga. Custom Trees, 1995) . If, Inc., 879 F. Supp. however, the 1200, defendant 1207 n.10 submits affidavits challenging the allegations in the complaint, the burden shifts back to the plaintiff to produce evidence supporting jurisdiction. Int'l, Inc., Diamond 593 Crystal F.3d 1249, Brands, 1257 Inc. Cir. (11th v. Food Movers 2010). If the plaintiff's complaint and supporting evidence conflict with the defendant's affidavits, the court must inferences in favor of the plaintiff. Int'l Hotels, Ltd., construe Id. all reasonable (citing Meier v. Sun 288 F.3d 1264, 1269 (11th Cir. 2002)). To determine whether a nonresident defendant is subject to personal jurisdiction, analysis. whether the Id. at the determine the forum of long-arm whether state Court 1257-58. exercise state's the to Fourteenth Amendment. personal are a two-part the Court must First, statute. there must determine jurisdiction is proper under Id. Next, sufficient satisfy perform the Id. ; Int'l the Court "minimum contacts" Due Process Clause Shoe Co. v. Wash. of must with the Office of Unemployment Comp. & Placement, 326 U.S. 310, 316 (1945). The Eleventh Circuit has held that "the Georgia long-arm statute does not grant courts in Georgia personal jurisdiction that is coextensive with procedural due process," but instead "imposes independent obligations that a plaintiff must establish for the exercise of personal jurisdiction that are distinct from the demands of procedural due process." Inc., 593 F.3d at 1259. "[C]ourts Diamond Crystal Brands, must apply the specific limitations and requirements of O.C.G.A. § 9-10-91 literally and must engage in a statutory examination that is independent of, and distinct both, from, separate satisfied." Id. the constitutional prongs at of the to ensure inquiry jurisdictional that are 1263. III. Defendant analysis B.A.U.S. AT DISCUSSION contends that this Court lacks personal jurisdiction over it, and the complaint should thus be dismissed. Upon review of the record, the Court also addresses Defendant Monika Baus'1 assertion that the Court lacks personal jurisdiction over her. Finally, the Court addresses the dismissal of Defendant Franz Baus.2 A. Defendant B.A.U.S. Defendant B.A.U.S. AT AT moves this Court to dismiss the complaint against it pursuant to Rule 12 of the Federal Rules of Civil Procedure, jurisdiction over insufficient. 1 asserting it and that this that service Because this Court finds Defendant Monika Baus' Court that and lacks personal process were i t lacks personal answer states that " [p]ersonal jurisdiction and venue are not proper before this Court based upon consent of the parties in choice of law and forum selection clauses as Monika Anna Baus did not agree, accept or sign such a clause. Monika Anna Baus did not consented (sic) to the United States (Doc. 6 1 8.) District Court Southern District of Georgia jurisdiction." Thus, and in light of the liberal standards afforded to a pro se litigant's pleadings, Baus' contention. 2 the Court additionally addresses Defendant Monika Erickson v. Pardus, 551 U.S. 89, 94 (2007) . On August 4, 2014, this Court directed Plaintiffs to show cause as to why Defendant Franz Baus should not be dismissed without prejudice. 34.) As that time has passed and Plaintiffs have failed to respond, Court addresses that Defendant as well. (Doc. the jurisdiction, it need not address Defendant B.A.U.S. AT's service argument. It is undisputed that B.A.U.S. AT was not a party to any of the contracts Court has at issue. personal agreements, Instead, Plaintiffs jurisdiction over specifically the first contend that B.A.U.S. contract AT because (Compl., Ex. this the A) containing the forum selection clause, "were made and signed by Monika Defendant Baus, an "Monika Baus['] or 80% shareholder of ownership ... is agreements Monika Baus' AT" and use of the corporate entities under her control at the heart of defies logic to state Defendant B.A.U.S. the BAUS when Defendant alter ego." (Doc. the entire case. It [AT] did not consent to B.A.U.S. 27 SI 4.) [AT] is In fact, essentially Plaintiffs assert that they do not seek to establish personal jurisdiction over B.A.U.S. AT through the Georgia long-arm statute, but that the Court has personal jurisdiction over B.A.U.S. AT because "it consented to [jurisdiction] in the [contract] signed May 8, 2008 by Monika Baus as President of Baus Management Corporation." (Id. H 2.) "Forum selection clauses are presumptively enforceable unless the [defendant] makes a enforcement would circumstances." be unfair or valid and ^strong showing' that unreasonable under Krenkel v. Kerzner Int'l Hotels Ltd., 1279, 1281 (11th Cir. 2009) the 579 F.3d (citing Carnival Cruise Lines, Inc. v. Shute, favored 499 due U.S. to 585, 593-95 their (1991)). ability to These provide Ice Cream Co. , No. (S.D.N.Y. Thus, Sept. forum 26, 13-CV-1083-JSR, 2013) selection (internal clauses 2013 Conopco, WL only be and Inc. v. 5549614, quotation marks will are "certainty predictability in the resolution of disputes." PARS clauses at *5 omitted). considered unenforceable when: (1) their formation was induced by fraud or overreaching; deprived of (2) the plaintiff effectively would be its day in court because of the inconvenience or the fundamental unfairness the of unfairness of chosen the chosen forum; law (3) would deprive the plaintiff of a remedy; or (4) enforcement of the provisions would contravene a strong public policy. Lipcon v. Underwriters at Lloyd's, (11th Cir. apply to 1998) . an predictability refuse to However, enforce S.E.2d 2 forum certainty], them." (Ga. Ct. "undermine and Conopco, (citing Cent. Ohio Graphics, 472 148 F.3d 1285, 1292 forum selection clauses that do not ascertainable and London, App. Inc. v. 1996) for [the] that goals reason, 2013 WL Alco Capital Res., and A.I. 5549614, Credit [of courts at *5 Inc., Corp. v. forum selection clause potentially provides for Liebman, 791 F. Supp. 427, 429 (S.D.N.Y. 1992)). Here, the jurisdiction in any court north of Mexico. for jurisdiction Quebec and Canada, in the courts, both local The clause allows and federal, of as well as any federal court in "such State 8 in connection with of . . . this any action agreement."3 or (Compl., proceeding Ex. A.) arising It out is entirely unclear from the record just how many of the fifty states could qualify. issue The is Court impermissibly policy in its jurisdiction B.A.U.S. finds favor, over AT's that vague, and thus Defendant motion the forum contravening the clause strong at public insufficient to support personal B.A.U.S. to selection AT. dismiss As for such, lack of Defendant personal jurisdiction is GRANTED. B. Defendants Monika Baus and Baus Management Corporation Defendant Monika Baus, answer (Doc. 6) that a neither pro se litigant, personal were proper in the instant matter. bear the prima burden facie case S.A. v. Mosseri, Here, above, of alleging of Plaintiffs the Court As stated above, jurisdiction." have finds jurisdiction "sufficient 736 F.3d 1339, 1350 failed that the asserted in her facts Louis meet forum venue Plaintiffs make Vuitton (11th Cir. to to nor out a Malletier, 2013). this burden. selection clause As is 3 Defendant B.A.U.S. AT argues that this language does not apply to the fifty United States, but rather the federal courts of Canada. This argument is of no avail. To read the clause as B.A.U.S. AT asserts would render the "any federal court located in such State" language meaningless, as surely the federal courts of Canada are also included in "the courts of the Quebec and Canada." (Compl., Ex. A.) See Equity Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv. , Inc., 556 F.3d 1232, 1242 (11th Cir. 2009) ("We must read the contract to give meaning to each and every word it contains, and we avoid treating a word as redundant or mere surplusage if any meaning, reasonable and consistent with other parts, can be given to it." (internal quotation marks omitted)). impermissibly vague must look to the and, thus, face of whether jurisdiction is unenforceable. Plaintiffs' proper before complaint simply asserts consented to jurisdiction the court . . . ." (Compl. that SI 10.) this Court to then determine Plaintiffs' Management the Court. "irrevocably courts of any federal It is undisputed that Defendant Monika Baus is a Polish citizen. two statements — that Ms. complaint Baus of The (Id. H 6.) Aside from those Baus consented to jurisdiction and is a Polish citizen — the complaint provides no indication of facts or circumstances Georgia's the Due that would long arm statute, Process give or Clause. rise that to jurisdiction would be Accordingly, under sufficient under Plaintiffs are hereby DIRECTED to submit to this Court sufficient facts demonstrating personal jurisdiction as to all remaining defendants within TEN (10) DAYS. The failure to do so could result in dismissal of the complaint without prejudice. C. Defendant As a Franz Baus final matter, in an Order dated August 4, 2014 (Doc. 34) , the Court directed Plaintiffs to show cause within thirty days as to why Defendant should not Franz Baus be dismissed without prejudice for failure to effect service upon him. As nearly sixty days have passed with no response from Plaintiffs, the Court hereby DISMISSES WITHOUT Baus. 10 PREJUDICE Defendant Franz III. For the reasons set CONCLUSION forth above, Defendant B.A.U.S. AT's motion to dismiss for lack of personal jurisdiction (Doc. 24) is GRANTED and its process (Doc. motion 25) to dismiss for is DENIED AS MOOT. are ORDERED to SHOW CAUSE within TEN insufficient service Additionally, (10) DAYS and Plaintiffs from the date of this Order as to why the Court should not dismiss the remaining defendants without prejudice for want of personal jurisdiction. Finally, Plaintiffs' complaint against Defendant Franz Baus is DISMISSED WITHOUT PREJUDICE. ORDER ENTERED at Augusta, October, Georgia, this /Q day of 2014. )AL HALL UNITED STATES DISTRICT JUDGE IERN DISTRICT OF GEORGIA 11

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