THE SCHUMACHER GROUP OF DELAWARE, INC. v. FRITZ DICTAN, etc.

• Court: District Court of Appeal of Florida
• Decided: September 8, 2021
• Docket: 20-1571
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed September 8, 2021. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D20-1571 Lower Tribunal No. 18-36746 ________________

The Schumacher Group of Delaware, Inc., Appellant,

vs.

Fritz Dictan, etc., et al., Appellees.

An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Carlos Guzman, Judge.

Shutts & Bowen, LLP, and Amy M. Wessel (Fort Lauderdale); Pollack Solomon Duffy LLP, and Phillip Rakhunov and Lauren A. Riddle (Boston, MA), for appellant.

Freedland Harwin Valori, P.L., and Daniel Harwin, and Melissa Gunion (Fort Lauderdale); Philip D. Parrish P.A., and Philip D. Parrish, for appellees.

Before LOGUE, SCALES, and LINDSEY, JJ.

LINDSEY, J. Appellant (Defendant below) The Schumacher Group of Delaware

(“TSG Delaware”) appeals from an unelaborated non-final order denying its

motion to dismiss for lack of personal jurisdiction. Because Appellee

(Plaintiff below) Fritz Dictan failed to satisfy the requirements of Florida’s

long-arm statute, we reverse the order on appeal and remand with

instructions to dismiss for lack of personal jurisdiction.

I. BACKGROUND

In October 2018, Dictan brought the underlying medical malpractice

action against various Florida defendants, including Dr. Larkin; The

Schumacher Group of Florida, Inc. (“TSG Florida”); Duval Emergency

Group, LLC; and Jackson North Medical Center, for medical treatment that

resulted in the death of Dictan’s wife, Marilaine Dictan Levi. There is no

dispute on appeal that these Florida defendants are subject to personal

jurisdiction.

In March 2020, Dictan filed an Amended Complaint, adding Appellant

TSG Delaware.1 The Complaint acknowledges that TSG Delaware is a

Delaware corporation with its principal place of business in Louisiana. There

1 The Amended Complaint also added TSG Resources, a Louisiana Corporation that is registered to do business in Florida. As with the other Florida entities, there is no dispute that TSG Resources is subject to personal jurisdiction in Florida.

2 is no reference to any provision of Florida’s long-arm statute in the

Complaint, and it does not specifically assert general or specific personal

The Complaint includes a lengthy list of TSG Delaware’s alleged

“numerous and extensive contacts” with Florida. It also alleges TSG

Delaware and its Florida subsidiaries were doing business and operating

under two trade names in Florida: Schumacher Group and Schumacher

Clinical Partners. The Complaint further alleges that Dr. Larkin was an agent

of TSG Delaware.

TSG Delaware moved to dismiss the Amended Complaint for lack of

personal jurisdiction. In support, TSG Delaware submitted the declaration of

Lisha Falk, its Vice President of Contracting and Assistant Corporate

Secretary.2 Falk affirmed that TSG Delaware is a Delaware holding

company that does not do any business in Florida, does not have an office

in Florida, does not have any employees in Florida, and does not own or

lease any property in Florida. Falk also explained that although TSG

Delaware owns the stock of TSG Florida and TSG Resources, both of which

2 Dictan conducted discovery before filing the Amended Complaint, which included a deposition of Falk. In addition to Falk’s Declaration, TSG Delaware attached excerpts of the Falk Deposition to its motion.

3 do business in Florida (and are defendants below), TSG Delaware does not

control the business operations of its Florida affiliates. This includes

defendant Duval, whose sole member is TSG Florida. Moreover, TSG

Delaware asserted that Dr. Larkin was an independent contractor of Duval,

a twice removed subsidiary of TSG Delaware. Further, these entities all

maintain separate corporate books and records, and TSG Delaware’s board

of directors is separate from TSG Florida’s and TSG Resources’ board of

directors. In short, the organizational structure of these entities is as follows:

Appellant TSG Delaware (A Delaware Holding Company)

TSG Resources TSG Florda (A Louisiana (A Florida Corporation Corporation) registered in Florida)

Duval (A Florida LLC)

Dr. Larkin (Independent Contractor Agreement with Duval)

4 With respect to the allegation in the Complaint that TSG Delaware

does business in Florida as “Schumacher Group” and “Schumacher Clinical

Partners,” Falk affirmed that these were trademarks used by TSG Delaware

and its corporate affiliates but not entities or “d/b/a” designations.

In August 2020, the trial court conducted a non-evidentiary hearing.

Dictan relied on an insurance policy under which TSG Delaware was a

named insured.3 Because this policy also covers TSG Delaware’s Florida

affiliates and provides insurance coverage against Florida risk, Dictan

argued jurisdiction was proper under subsection 4 of Florida’s long-arm

statute. See § 48.193(1)(a)(4), Fla. Stat. (2020) (subjecting a nonresident to

jurisdiction for a cause of action arising from “contracting to insure a person,

property, or risk located within this state at the time of contracting”). TSG

Delaware argued that the mere purchase of an insurance policy by a parent

that covers its subsidiaries does not subject the parent to jurisdiction.

Dictan also focused extensively on TSG Delaware’s alleged contacts

in Florida through “Schumacher Group and/or Schumacher Clinical

Partners,” arguing that these trademarks were “doing business” in Florida.

In response, TSG Delaware explained that the trademarks are not legal

3 Dictan first mentioned this insurance policy in his written response in opposition to TSG Delaware’s motion to dismiss; it is not mentioned in the Amended Complaint.

5 entities and they do not “do business” anywhere. Though the Florida

affiliates used these trademarks, TSG Delaware argued that shared

trademarks among affiliates is not enough to subject TSG Delaware to

jurisdiction in Florida.

Finally, Dictan argued that jurisdiction was proper under subsection 2

of Florida’s long-arm statute because Dr. Larkin as TSG Delaware’s agent

committed a tort. See § 48.193(1)(a)(4) (subjecting a nonresident to

jurisdiction who personally or through an agent commits a tortious act in

Florida). TSG Delaware argued there was nothing in the record connecting

Dr. Larkin to TSG Delaware. Indeed, the only record evidence is an

independent contractor agreement between Dr. Larkin and Duval, a twice

removed subsidiary of TSG Delaware.

At the conclusion of the hearing, TSG Delaware requested an

evidentiary hearing on the intellectual property issues if the trial court

believed it would be helpful. The court stated it would limit itself to the

allegations in the pleadings and the response. The court ultimately entered

an unelaborated order denying TSG Delaware’s motion to dismiss. TSG

Delaware timely appealed.

II. ANALYSIS

6 It is undisputed that only specific personal jurisdiction is at issue in this

appeal. Florida’s long-arm statute, section 48.193, lists eight types of acts

(or contacts) that give rise to specific jurisdiction. The statute not only

requires that the nonresident defendant engage in one (or more) of the

enumerated acts, but also that the cause of action “arise from” the

enumerated acts. See Philip J. Padovano, Fla. Prac., Civil Practice § 8:7

(2021 ed.) (“The term ‘arising from’ in section 48.193 means that there must

be a substantive connection between the basis of the cause of action and

the activity in the state.”).

Dictan argues that specific jurisdiction is proper based on the following

three acts: (1) TSG Delaware’s insurance policy that covers its affiliates and

risks in Florida; (2) TSG Delaware’s use of trademarks to do business in

Florida; and (3) TSG Delaware’s commission of a tortious act in Florida

through its agent, Dr. Larkin. TSG Delaware maintains that Dictan has failed

to satisfy the requirements of Florida’s long-arm statute but alternatively

requests us to remand with instructions to hold an evidentiary hearing. 4

4 Though not required for resolution of this case, trial courts are permitted to conduct evidentiary hearings on a motion to dismiss for lack of personal jurisdiction. See Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 503 (Fla. 1989) (explaining that when the parties’ sworn proof is in conflict, “the trial court will have to hold a limited evidentiary hearing in order to determine the jurisdiction issue”).

7 A. TSG Delaware’s Insurance Policy

Pursuant to section 48.193(1)(a)(4), a foreign defendant submits to

jurisdiction for any cause of action arising from “[c]ontracting to insure a

person, property, or risk located within the state at the time contracting.”

Dictan argues that TSG Delaware’s insurance policy “is a huge, case

dispositive ‘elephant in the room.’” We disagree.

As an initial matter, Dictan has failed to explain how his medical

malpractice tort claims arise from the insurance policy. See Lapidus v. NCL

Am. LLC, No. 12-21183-CIV, 2013 WL 646185, at *4 (S.D. Fla. Feb. 14,

2013) (“Here, Plaintiff’s contention that the Excursion Entities agreed to

indemnify NCL for his claims is insufficient because Plaintiffs negligence

claims do not arise from an indemnity agreement. Plaintiff’s claims arise from

NCL’s allegedly negligent actions onboard the ship and in Hawaii. Put

another way, Plaintiffs negligence claims could be asserted regardless of

whether an indemnity agreement exists between NCL and the Excursion

Entities.”); Lee-Bolton v. Koppers Inc., No. 1:10CV253/MCR/GRJ, 2014 WL

11512198, at *3 (N.D. Fla. Mar. 31, 2014) (“[E]ven if the Court construes

Beazer Limited’s guarantee . . . as a contract to insure a risk, the long-arm

statute nonetheless requires that Plaintiffs’ cause of action ‘aris[e] from’ the

act of contracting. This ‘requirement necessitates a “direct affiliation, nexus,

8 or substantial connection” between the basis for the cause of action and the

action that falls under the long-arm statute,’ which has not been shown in

this case. Plaintiffs’ . . . Second Amended Complaint plainly sounds in tort,

not contract . . . .” (citations omitted)).

Further, the statute’s plain language requires the defendant to be an

insurer: “[c]ontracting to insure a person, property or risk . . . .” It is

undisputed that TSG Delaware is not the insurer but the insured. See

Padovano, supra § 8:7 (“The rationale for this fourth subsection of the long-

arm statute is that an insurance company purposely avails itself of the

privileges afforded by the State of Florida by selling insurance in the state.”

(Emphasis added)). Indeed, even a foreign insurance agency that procures

insurance for a Florida client is not subject to jurisdiction pursuant to this

provision because the insurance agency is not the insurer and therefore does

not “insure a risk” within the state of Florida. See Alexander & Alexander of

the Carolinas, Inc. v. Northwest Oxygen, Inc., 541 So. 2d 1238, 1239 (Fla.

2d DCA 1989). Dictan has cited no authority for the proposition that an

insured can be subject to jurisdiction pursuant to section 48.193(1)(a)(4).

And we decline to create such authority here.

B. TSG Delaware’s Use of Trademarks

9 A foreign defendant submits to jurisdiction pursuant to section

48.193(1)(a)(4) for any cause of action arising from “operating, conducting,

engaging in, or carrying on a business venture in this state or having an

officer or agency in this state.” Nearly all the jurisdictional contacts alleged

in Dictan’s Answer Brief are based on the theory that TSG Delaware acted

through two of its trademarks: “Schumacher Group” and “Schumacher

Clinical Partners.”5

It is undisputed that “Schumacher Group” and “Schumacher Clinical

Partners” are not legal entities. They are trademarks used by TSG Delaware

and its affiliates, including the Florida affiliates that are defendants below.

Consequently, TSG Delaware does not act through these nonentity

trademarks.

Moreover, an affiliate’s use of the same intellectual property as a

parent corporation is legally insufficient to confer personal jurisdiction over

the parent. See Baban v. Intercontinental Hotels Grp. PLC, No. 04-21065-

CIV, 2006 WL 8418675, at *3 (S.D. Fla. Mar. 8, 2006) (granting parent

corporation’s motion to dismiss for lack of personal jurisdiction where parent

used the same trade name as its affiliates and dealt with the same brand of

5 TSG Delaware itself is not mentioned in any of the documents submitted by Dictan except the insurance policy and records from the United States Patent and Trademark Office.

10 hotels as its Florida subsidiary); Prescott v. LivaNova PLC, No. 3:16-CV-

00103-JAJ, 2017 WL 2591270, at *9 (S.D. Iowa June 12, 2017) (granting a

motion to dismiss for lack of personal jurisdiction where “[t]he companies

share a common branding scheme, including a common email domain, but

maintain completely separate day-to-day operations, employees, officers,

and corporate structures”); Patterson v. Home Depot, USA, Inc., 684 F.

Supp. 2d 1170, 1179 (D. Ariz. 2010) (“The fact that the two companies used

the same logo and intellectual property pursuant to the licensing agreement

also does not demonstrate that Krause–Werk was the alter-ego of the

other.”); Von Grabe v. Sprint PCS, 312 F. Supp. 2d 1285, 1301 (S.D. Cal.

2003) (holding that a common trade name and logo, without more, is not a

sufficient basis for establishing personal jurisdiction); In re Enter. Rent-A-Car

Wage & Hour Employment Practices Litig., 735 F. Supp. 2d 277, 285 (W.D.

Pa. 2010), aff’d, 683 F.3d 462 (3d Cir. 2012) (sharing employment policy

manuals, trademarks, and brand names by parent and subsidiary, and the

parent hosting the website used by subsidiary in the forum state is not

sufficient to confer personal jurisdiction over a foreign parent corporation).

Dictan attempts to distinguish these cases by arguing that the two

trademarks should be treated as entities and as TSG Delaware’s direct

11 agents. Dictan cites no authority supporting this novel approach. 6 Moreover,

even if TSG Delaware is somehow engaged in a business venture in Florida

through its nonentity trademarks, Dictan has failed to articulate how his

medical malpractice action arises from this alleged business venture.

C. TSG Delaware’s Alleged Commission of a Tortious Act in Florida through Its Agent, Dr. Larkin

A foreign defendant, either personally or through an agent, is subject

to jurisdiction in Florida under section 48.193(1)(a)(2) for any cause of action

arising from “[c]ommitting a tortious act within this state.”

Dictan admits that Dr. Larkin entered into an independent contractor

agreement with Duval. 7 And it is undisputed that Duval is a subsidiary of

TSG Florida, and TSG Florida, in turn, is a subsidiary of TSG Delaware. TSG

Delaware argues there is nothing in the record connecting Dr. Larkin with

TSG Delaware (and indeed, nothing connecting TSG Delaware and Duval).

6 Dictan uses designations such as “a/k/a” and “d/b/a” throughout its various filings when referring to the two trademarks. It is undisputed that TSG Delaware is not registered to do business in Florida, including as any “d/b/a.” See § 865.09(3)(a) (“A person may not engage in business under a fictitious name unless the person first registers the name with the division by filing a registration . . . .”). 7 This “Physician Agreement” explicitly states that Dr. Larkin’s relationship with Duval “shall be that of an independent contractor” and that Duval “shall not exercise any control or direction over the methods by which Physician shall perform his/her professional work and duties while on duty.”

12 Dictan argues that agency is an intensely factual relationship, rarely

subject to a determination as a matter of law. Though we agree this is

generally true, Dictan cannot point to anything in the record that directly

connects TSG Delaware with Dr. Larkin. Instead, Dictan argues that TSG

Delaware through its trademarks Schumacher Clinical and Schumacher

Group “had the right to control virtually every aspect of Dr. Larkin’s presence

at Jackson North.” But as previously explained, these trademarks, which

were used by TSG Delaware and its Florida affiliates, are not legal entities,

and Dictan fails to articulate how a nonentity trademark could exert control

over Dr. Larkin.

D. Evidentiary Hearing

During the hearing below, both parties recognized that there was a

disputed fact as to who owned the relevant trademarks. This is immaterial

to our analysis because even if TSG Delaware owns the trademarks (as

Dictan contends), there is no dispute that these trademarks are not legal

entities. Moreover, as set forth above, the case law is clear that the shared

use of trademarks among affiliates is insufficient to subject a foreign parent

to personal jurisdiction. See, e.g., Von Grabe, 312 F. Supp. 2d 1285, 1297

(S.D. Cal. 2003) (“In the instant case, there is a parent-subsidiary

relationship, but there is not such unity of interest, i.e., alter ego, so as to

13 disregard the corporate relationship. [The parent’s] contacts with California

appear to be limited to its subsidiaries doing business in California, and the

use of a common trademark and trade name with its numerous subsidiaries

who are operating in California. . . . Thus . . . it does not appear that [the

parent] has sufficient minimum contacts with California, by purposeful

availment or through an alter ego analysis, to support general or specific

personal jurisdiction.”).

III. CONCLUSION

Because Dictan has failed to satisfy the requirements of Florida’s long-

arm statute, 8 we reverse the unelaborated order denying TSG Delaware’s

motion to dismiss and remand with instructions to dismiss for lack of personal

Reversed and remanded.

8 Venetian Salami sets forth both a statutory and constitutional inquiry to determine whether Florida courts may exercise personal jurisdiction over a nonresident defendant. 554 So. 2d at 502. Because Dictan fails to establish personal jurisdiction under the long-arm statute, there is no need to determine whether TSG Delaware has sufficient minimum contacts with the state to satisfy constitutional due process.