Third District Court of Appeal State of Florida
Opinion filed December 7, 2022. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-169 Lower Tribunal No. 21-18442 ________________
Condor, S.A., Appellant,
vs.
The Plurinational State of Bolivia, Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade County, William Thomas, Judge.
Reed Smith LLP, and Edward M. Mullins, Ana M. Barton and Daniel Alvarez Sox, for appellant.
Greenberg Traurig, P.A., and Brigid F. Cech Samole and Bethany J.M. Pandher, for appellee.
Before EMAS, SCALES1 and HENDON, JJ.
1 Judge Scales did not participate in oral argument. PER CURIAM.
Appellant Condor, S.A., co-defendant below, appeals a January 2,
2022 non-final order denying Condor’s motion to dismiss for lack of personal
jurisdiction. See Fla. R. App. P. 9.130(a)(3)(C)(i) (providing Florida’s district
courts with appellate jurisdiction to review non-final orders that “determine .
. . the jurisdiction of the person”). We reverse the challenged order because:
(i) appellee, plaintiff below, the Plurinational State of Bolivia’s (“Bolivia”)
operative amended complaint failed to sufficiently allege that Condor
committed a tortious act in Florida, see § 48.193(1)(a)2., Fla. Stat. (2021);
and (ii) Bolivia failed to refute Condor’s sworn declaration attesting that
Condor did not participate in a business venture in Florida, see §
48.193(1)(a)1., Fla. Stat. (2021).
I. RELEVANT FACTS AND PROCEDURAL HISTORY2
Condor is a Brazilian company that manufactures riot suppression
weaponry (i.e., tear gas, flash and sound grenades, rubber bullets, etc.) for
sale in foreign countries, not including the United States. In late 2019, Bolivia
notified Condor that “due to logistical and legal problems” Condor could no
longer sell Condor’s weapons to Bolivia through its usual means. Condor
2 The facts contained herein are taken from Bolivia’s amended complaint and the parties’ competing declarations submitted to the trial court for consideration of Condor’s motion to dismiss for lack of personal jurisdiction.
2 then took steps to sell its weapons to Bolivia through a distributor, co-
defendant Bravo Tactical Solutions, LLC (“Bravo Tactical”), a Florida
corporation. Condor first entered into an agreement, on December 17, 2019,
to sell its weapons to Bravo Tactical for approximately $3.4 million, the same
price that Condor would have charged any other distributor under similar
circumstances. Bravo Tactical then, on December 19, 2019, entered into a
separate agreement to sell the weapons to Bolivia for approximately $5.7
million (“the Weapons Contract”). Importantly, Condor was not a party to the
Weapons Contract. Condor manufactured and delivered the weapons to
Bolivia in Brazil, receiving payment from Bravo Tactical in Condor’s Brazilian
bank account.
It is not disputed that co-defendants Bryan Berkman and Louis
Berkman, officers of Bravo Tactical, bribed certain Bolivian government
officials (also co-defendants in this case) to enter into the Weapons Contract,
with both the Berkmans and the Bolivian government officials splitting the
approximately $2.3 million profit from the sale. Indeed, the Berkmans and
most of the corrupt Bolivian government officials pled guilty in federal court
to participating in a bribery and money laundering conspiracy. Condor,
referenced indirectly as an “Intermediary Company” in the federal criminal
proceeding, was never charged with a federal crime.
3 In 2021, Bolivia filed the instant civil action in the Miami-Dade County
Circuit Court against the Berkmans, Bravo Tactical, the former Bolivian
government officials and Condor. 3 Relying upon the federal criminal
proceeding, Bolivia’s amended complaint set forth the bribery and money
laundering scheme, alleging that Condor was a co-conspirator. Bolivia’s
pleading alleged, in relevant part, that Condor (i) “conspired with Defendant
Bravo Tactical to enter into the contract with the Bolivian Ministry of Defense
for the sale of chemical agents and ammunitions manufacturer by Defendant
Condor knowing that Defendant Bravo Tactical would offer such goods at a
significant surcharge,” and (ii) “conspired to participate in a scheme whereby
[the former Bolivian government officials] were paid secret bribes in
exchange for awarding the Weapons Contract to Defendant Bravo Tactical.”
Bolivia’s amended complaint asserted that the trial court had specific
personal jurisdiction over nonresident Condor under Florida’s long-arm
statute because, Bolivia alleged, Condor operated, conducted, engaged in,
or carried on a business venture in Florida in relation to the Weapons
3 Bolivia’s amended complaint alleged claims against Condor for civil conspiracy (counts V and XIV), conspiracy to violate the Florida Deceptive and Unfair Trade Practices Act (count XV), aiding and abetting breach of fiduciary duty (count VI), violation of Florida’s RICO Act (count VII), unjust enrichment (count IX), equitable lien (count X), and violations of Bolivian law (counts XII and XIII).
4 Contract and/or committed tortious acts in Florida in relation to the
conspiracy. See § 48.193(1)(a)1.-2., Fla. Stat. (2021). 4
On October 12, 2021, Condor filed its “Motion to Dismiss for Failure to
State a Claim and Lack of Personal Jurisdiction.” Therein, Condor claimed
that Bolivia’s amended complaint failed to sufficiently allege Condor’s
participation in a conspiracy, arguing that Bolivia’s pleading alleged only that
Condor engaged in a routine business transaction to make a profit. Condor
also disputed the trial court’s exercise of specific personal jurisdiction over it
under Florida’s long-arm statute, submitting the sworn declaration of its
“Commercial Director” who contested the amended complaint’s jurisdictional
allegation. Bolivia then filed a response in opposition to Condor’s motion to
dismiss, providing the sworn declaration of its “General Director of Legal
Matters of the State Attorney General’s Office,” who, in relevant part,
4 Personal jurisdiction over a nonresident defendant under Florida’s long-arm statute is either general or specific. “A Florida court has ‘general’ jurisdiction over a nonresident defendant when the defendant has ‘engaged in substantial and not isolated activity within this state.’” Banco de los Trabajadores v. Cortez Moreno, 237 So. 3d 1127, 1132 (Fla. 3d DCA 2018) (citing section 48.193(2) of the Florida Statutes). “A Florida court may exercise ‘specific’ jurisdiction over a nonresident defendant in those cases in which it is alleged that the nonresident defendant commits any of the specific acts enumerated in the statute in Florida, so long as the cause of action arises from that enumerated act committed in Florida.” Id. at 1133 (citing section 48.193(1)(a)1.-9. of the Florida Statutes).
5 attested that the amended complaint’s allegations were accurate and that
the various documents attached to the declaration were authentic.
On November 19, 2021, the trial court held a non-evidentiary hearing
on Condor’s motion to dismiss. The hearing transcript reflects that the court
adjourned the hearing without making a ruling and directed the parties to
submit competing, proposed orders. On January 2, 2022, the trial court
entered Bolivia’s proposed order denying Condor’s motion to dismiss.
In the January 2, 2022 order, the trial court cited two, independent
bases for extending specific personal jurisdiction over nonresident Condor
under Florida’s long-arm statute, determining that: (i) Bolivia’s amended
complaint sufficiently alleged Condor’s participation in a civil conspiracy to
commit a tortious act in Florida, § 48.193(1)(a)2., Fla. Stat. (2021); and (ii)
Condor operated, conducted, engaged in, or carried on a business venture
in Florida in relation to the Weapons Contract. § 48.193(1)(a)1., Fla. Stat.
(2021). The trial court also found that Condor had sufficient minimum
contacts with Florida to satisfy federal, constitutional due process concerns.
Condor timely appealed this January 2, 2022 order.
6 II. ANALYSIS5
The trial court conducts a two-step inquiry to determine whether it has
personal jurisdiction over a nonresident defendant. See Parisi v. Kingston,
314 So. 3d 656, 660 (Fla. 3d DCA 2021) (citing Venetian Salami Co. v.
Parthenais, 554 So. 2d 499, 502 (Fla. 1989)). First, the court looks to
whether the operative complaint either tracks the language of Florida’s long-
arm statute or “alleges facts sufficient to show that the defendant’s actions
fit within one or more subsections of the statute.” Id. If the complaint’s
allegations are sufficient to establish application of the long-arm statute, the
court must then determine whether the defendant has “sufficient minimum
contacts” with Florida to satisfy due process concerns under the federal
constitution. Id. If, however, the complaint’s allegations fail to allege a
sufficient basis to establish that the long-arm statute applies, the
constitutional inquiry is not necessary and the trial court must dismiss the
operative pleading for lack of personal jurisdiction. Id.
In this appeal, as below, Condor challenges the trial court’s exercise
of specific personal jurisdiction over it under Florida’s long-arm statute.
Specifically, Condor asserts that the trial court erred when it determined that:
5 “We review de novo the trial court’s decision on a motion to dismiss for lack of personal jurisdiction of a defendant.” Banco de los Trabajadores, 237 So. 3d at 1132 n.5.
7 (i) Bolivia’s amended complaint sufficiently alleged that Condor committed a
tortious act in Florida in furtherance of a conspiracy, § 48.193(1)(a)2., Fla.
Stat. (2021); and (ii) Condor conducted a business venture in Florida in
relation to the Weapons Contract. § 48.193(1)(a)1., Fla. Stat. (2021). We
address each ground in turn.
A. Extension of Florida’s Long-Arm Statute under the Co-Conspirator Theory
Condor challenges the trial court’s determination that Bolivia’s
amended complaint adequately alleged that Condor conspired with Condor’s
co-defendants to illegally – through bribery – procure the Weapons Contract.
“A civil conspiracy requires: (a) an agreement between two or more parties,
(b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing
of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff
as a result of the acts done under the conspiracy.” Raimi v. Furlong, 702 So.
2d 1273, 1284 (Fla. 3d DCA 1997). “[I]f a plaintiff has successfully alleged a
cause of action for conspiracy among the defendants to commit tortious acts
toward the plaintiff, and if the plaintiff has successfully alleged that any
member of that conspiracy committed tortious acts in Florida in furtherance
of that conspiracy, then all of the conspirators are subject to the jurisdiction
of Florida through its long-arm statute.” NHB Advisors, Inc. v. Czyzyk, 95 So.
3d 444, 448 (Fla. 4th DCA 2012). This method of extending specific personal
8 jurisdiction over a nonresident defendant under the long-arm statute is
known as the co-conspirator theory. Id.
Here, Condor does not dispute that the amended complaint sufficiently
alleged that (i) Bravo Tactical, the Berkmans and the former Bolivian
government officials conspired to commit tortious acts toward Bolivia, and
(ii) the Berkmans and Bravo Tactical committed tortious acts in Florida in
furtherance of the conspiracy. Condor, rather, contends that Bolivia’s
amended complaint’s conspiracy allegations are impermissibly vague and
conclusory as to Condor’s involvement and participation in this conspiracy.
Consequently, Condor argues, the trial court erred in extending specific
personal jurisdiction over it through application of the co-conspirator theory.
Id. (“[A] court will decline to apply the co-conspirator theory to extend
jurisdiction over nonresidents if the plaintiff fails to plead with specificity any
facts supporting the existence of the conspiracy and provides nothing more
than vague and conclusory allegations regarding a conspiracy involving the
defendants.”); Parisi, 314 So. 3d at 661 (“[A] claim for civil conspiracy must
contain clear, positive and specific allegations; general allegations of
conspiracy are not sufficient. And, where the conspiracy allegations are
deficient, the trial court must dismiss the complaint against a nonresident
9 defendant for lack of personal jurisdiction.”) (citation omitted). On our de
novo review of Bolivia’s amended complaint, we agree with Condor.
While Bolivia’s amended complaint clearly alleged a conspiracy
between Bravo Tactical, the Berkmans and the former Bolivian government
officials to sell tear gas, rubber bullets and other forms of riot control
weapons to the Bolivian government at an inflated price via a bribery and
money laundering scheme, and alleged that the Berkmans and Bravo
Tactical committed certain acts in furtherance of this conspiracy in Florida,
Bolivia’s pleading otherwise failed to make the requisite clear, positive and
specific allegations of Condor’s participation in the conspiracy. Parisi, 314
So. 3d at 663. At most, the pleading alleged that Condor sold its riot control
weapons to Bravo Tactical knowing that Bravo Tactical would then sell the
weapons to Bolivia at a “significant surcharge.” Far from a conspiracy, this is
a common, rather routine, business practice. Missing entirely from Bolivia’s
amended complaint is any specific allegation detailing Condor’s knowledge
of, and participation in, the bribery and money laundering scheme between
Bravo Tactical, the Berkmans and the former Bolivian government officials.
See Savoia-McHugh v. Glass, Case No. 3:19cv2018-MCR/HTC, 2020 WL
12309558, at *8, *9 (N.D. Fla. Aug. 5, 2020) (recognizing that “each
coconspirator . . . need only know of the scheme and assist in it in some
10 way to be held responsible for all of the acts of his coconspirators,” and
dismissing a complaint for lack of personal jurisdiction where “[the
nonresident defendant’s] involvement in the transactions and his alleged
benefit from them [did] not give rise to a reasonable inference that he joined
a conspiracy, because there [was] no factual allegation to indicate he was
aware of the alleged wrongdoing” (quoting Charles v. Fla. Foreclosure
Placement Ctr., LLC, 988 So. 2d 1156, 1160 (Fla. 3d DCA 2008)));
Birmingham v. RoFx.net, Case No. 21-23472-CIV, 2022 WL 1686683, at *1
(S.D. Fla. May 26, 2022) (dismissing a complaint for lack of personal
jurisdiction because the pleading’s allegations that the nonresident
defendant “would receive funds from RoFx customers and route the illicit
funds as directed by the RoFx Operators – with little or no scrutiny” did not
allow for a reasonable inference that the defendant played a “conscious role”
in the alleged conspiracy); cf. Menendez v. Beech Acceptance Corp., 521
So. 2d 178, 180 (Fla. 3d DCA 1988) (recognizing that “[s]ome proof of
knowledge of a conspiracy, and participation in it by the alleged tortfeasor,
must be shown”). Indeed, Condor sold the weapons to Bravo Tactical for the
same amount of money that it would have charged any distributor under
similar circumstances. Because Bolivia’s amended complaint failed to
sufficiently allege Condor’s participation in the conspiracy, the trial court
11 erred in extending the long-arm statute to Condor under the co-conspirator
theory. Parisi, 314 So. 3d at 661.
Moreover, to the extent the trial court was persuaded that either
Bolivia’s response to the motion to dismiss or the various attachments to
Bolivia’s competing declaration provided the requisite level of specificity that
is missing from Bolivia’s amended complaint, we find that this was also error.
“Until the plaintiff – within the four corners of the complaint – pleads a legally
sufficient basis for extending long-arm jurisdiction over a nonresident
defendant, the defendant is not required to file an affidavit, declaration or
present other evidence to contest personal jurisdiction.” Id. at 663. “That
[Condor] filed a declaration supporting [its] motion to dismiss, and that
[Bolivia] filed [its] own competing declaration, is inconsequential because the
operative pleading is impermissibly vague and conclusory and, therefore,
does not sufficiently plead a basis for extending jurisdiction over [Condor].”
Id. at 664.
As we explained in Parisi, “Venetian Salami’s burden shifting analysis
is triggered, and the parties’ competing affidavits become relevant, only
when the operative pleading adequately alleges a basis for extending long-
arm jurisdiction over a non-resident defendant; a non-resident defendant
does not have to anticipate the plaintiff, in a responsive declaration, affidavit,
12 or otherwise, asserting entirely new allegations in support of personal
jurisdiction.” Id. (emphasis added). In other words, to correct its pleading
deficiency, Bolivia could not assert new allegations in either its response to
Condor’s motion to dismiss or its sworn declaration that purported to provide
the requisite clear, positive and specific allegations that are missing from its
amended complaint. 6
Because there was no basis for extending specific personal jurisdiction
over Condor through application of the co-conspirator theory, the trial court
should have dismissed Bolivia’s amended complaint as to Condor’s alleged
participation in a conspiracy.7
B. Extension of Florida’s Long-Arm Statute Based on Condor’s Alleged Carrying on a Business Venture in Florida in Relation to the Weapons Contract
6 We express no opinion as to whether the facts asserted in either Bolivia’s response to the motion to dismiss or the documents attached to its sworn declaration, if incorporated into a second amended complaint, would sufficiently allege Condor’s participation in a civil conspiracy. 7 Because Bolivia filed only one amended complaint in this case, the trial court should have dismissed Bolivia’s amended complaint without prejudice to Bolivia filing a second amended complaint. See Parisi, 314 So. 3d at 664; World Class Yachts, Inc. v. Murphy, 731 So. 2d 798, 800 (Fla. 4th DCA 1999) (recognizing that a plaintiff should be given “leave to amend a complaint unless the privilege has been abused, there is prejudice to the opposing party, or amendment would be futile”).
13 Condor also challenges the trial court’s alternate basis for exercising
personal jurisdiction over Condor, i.e., the trial court’s determination that
Bolivia had adequately established that, with regard to the Weapons
Contract, Condor had conducted business in Florida. For the purposes of
section 48.193(1)(a)1. of the Florida Statutes, “to demonstrate that a
nonresident defendant is ‘carrying on business’ the defendant’s activities
‘must be considered collectively and show a general course of business
activity in the state for pecuniary benefit.’” Stonepeak Partners, LP v. Tall
Tower Capital, LLC, 231 So. 3d 548, 555 (Fla. 2d DCA 2017) (quoting RMS
Titanic, Inc. v. Kingsmen Creatives, Ltd., 579 Fed. Appx. 779, 783 (11th Cir.
2014)). “Factors to consider in making this determination “include: (1) ‘the
presence and operation of an office in Florida’; (2) ‘the possession and
maintenance of a license to do business in Florida’; (3) ‘the number of Florida
clients served’; and (4) ‘the percentage of overall revenue gleaned from
Florida clients.’” Id. (quoting RMS Titanic, Inc., 579 Fed. Appx. at 784).
“To bring the cause within the ambit of the long-arm statute, the
complaint may either allege facts sufficient to show that the defendant’s
actions fit within one or more of the subsections of the statute, or track the
language of the statute.” Woodruff-Sawyer & Co. v. Ghilotti, 255 So. 3d 423,
427 (Fla. 3d DCA 2018). Here, trial court correctly found that the amended
14 complaint’s specific jurisdictional allegation that Condor “operated,
conducted, engaged in, or carried on a business venture in Florida in relation
to the Weapons Contract” adequately tracked the language of the long-arm
statute. See § 48.193(1)(a)1., Fla. Stat. (2021). Thus, Condor bore the
burden of refuting the allegation by affidavit or other sworn proof. Woodruff-
Sawyer & Co., 255 So. 3d at 427.
Condor met its burden by submitting the sworn declaration of its
“Commercial Director” who contested the amended complaint’s jurisdictional
allegation. Among other things, this declarant attested that Condor: does not
have an office in Florida; is not licensed or registered to do business in
Florida; does not conduct any business in Florida; does not have any bank
accounts in Florida; does not market any products in Florida; and does not
sell any products to the United States. Further, “Condor did not solicit Bravo
Tactical Solutions . . . in Florida.” “Rather, Bravo [Tactical] approached
Condor in or around November of 2019 to purchase certain products that it
would resell to Bolivia.” “Condor did not review or approve the [Weapons]
Contract or even know its terms, including the retail price Bravo [Tactical]
charged to Bolivia.” “Condor manufactured, sold and delivered the
[weapons] in Brazil.” “Bolivia sent a Bolivian military plane to Brazil to receive
and take the [weapons] to Bolivia.” Finally, this declarant attested that
15 Condor received payment from Bravo Tactical in Condor’s Brazilian bank
account.
Because Condor’s sworn declaration fully disputed the amended
complaint’s jurisdictional allegations regarding Condor’s conducting
business in Florida, the burden then shifted back to Bolivia to “refute the
proof” in Condor’s sworn declaration with its own affidavit or other sworn
proof demonstrating that there is a basis for the Florida court to assert long-
arm jurisdiction over Condor. Id.; Rautenberg v. Falz, 193 So. 3d 924, 929
(Fla. 2d DCA 2016) (“If the defendant’s affidavit fully disputes the
jurisdictional allegations, then the burden shifts back to the plaintiff to prove
by affidavit or other sworn proof that there is a basis for long-arm
jurisdiction.”). Bolivia responded to Condor’s showing by submitting the
declaration of Bolivia’s “General Director of Legal Matters of the State
Attorney General’s Office,” who, in relevant part, attested merely that the
amended complaint’s allegations were accurate and that the documents
attached to the declaration were authentic. 8 Bolivia’s affiant’s general and
8 Those documents included: (i) a November 26, 2019 letter from the Bolivian government informing Condor that Bolivia would only purchase weapons through Bravo Tactical; (ii) a December 9, 2019 Condor proposal to sell its weapons to Bravo Tactical that set forth the quantity, delivery terms and guarantee of its weapons; (iii) a December 10, 2019 Condor letter informing the Bolivian government that Bravo Tactical would be the distributor of Condor’s weapons; (iv) the transcripts of voice messages between
16 somewhat conclusory assertions, though, failed to refute the showing of
Condor, and they did not establish Condor’s participation in a business
venture in Florida with respect to the Weapons Contract between Bolivia and
Bravo Tactical. Simply put, in response to Condor’s evidentiary showing,
Bolivia presented no evidence that Condor conducted business in Florida
related to the Weapons Contract. See Stonepeak Partners, LP, 231 So. 3d
at 557 (“The trial court did not find and the evidence does not support that
[the nonresident defendant] dealt in any goods, services, or property in
Florida or that [the nonresident defendant’s] activities in Florida showed a
general course of business activity for pecuniary gain.”); Wrapapan, LLC v.
Elson, 322 So. 3d 684, 688 (Fla. 4th DCA 2021) (“[I]t is undisputed that the
negotiation and drafting of the unexecuted agreements occurred in New
York. Those agreements required no performance in Florida, nor did any
meetings concerning the venture take place in Florida. The appellants do not
have an office in Florida and do not hold a license to operate in Florida. Thus,
contrary to the trial court’s ruling, the defendants did not carry on a business
venture in Florida.”).
representatives for Condor and Bravo Tactical with respect to Bolivia’s receipt of the weapons in Brazil; and (v) bank statements reflecting wire transfers from Bravo Tactical’s Florida bank account to Condor’s Brazilian bank account.
17 Bolivia, therefore, did not satisfy the requirements, under Florida’s
long-arm statute, for the trial court to exercise specific personal jurisdiction
over Condor. The trial court should have dismissed the amended complaint
as to Condor’s alleged participation in a business venture in Florida in
relation to the Weapons Contract. Wrapapan, LLC, 322 So. 3d at 689;
Stonepeak Partners, LP, 231 So. 3d at 558; Hilltopper Holding Corp. v.
Estate of Cutchin ex rel. Engle, 955 So. 2d 598, 602 (Fla. 2d DCA 2007) (“If
the plaintiff fails to come forward with sworn proof to refute the allegations in
the defendant’s affidavit and to prove jurisdiction, the defendant’s motion to
dismiss must be granted.”).
III. CONCLUSION
Bolivia’s amended complaint set forth only impermissibly vague and
conclusory allegations as to nonresident Condor’s participation in a civil
conspiracy between residents Luis Berkman, Bryan Berkman, Bravo Tactical
and former Bolivian government officials. These allegations were not
sufficient to establish personal jurisdiction over Condor under section
48.193(1)(a)2. for committing a tortious act within the state. Further, in
seeking to establish personal jurisdiction over Condor under section
48.193(1)(a)1., Bolivia failed to refute Condor’s sworn declaration attesting
that Condor did not participate in a business venture in Florida. We,
18 therefore, reverse the January 2, 2022 non-final order, and we remand with
instructions that the trial court dismiss the amended complaint without
prejudice to Bolivia filing a second amended complaint.
Reversed and remanded with instructions.