OCR - 12/17/2010 25 RESPONSE to motion re 16 MOTION to amend/correct 1 Complaint MOTION for discovery on Personal Jurisdiction filed by John Bordynuik, JBI, Inc.. (Beveridge, Cathy) (Entered: 12/17/2010)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CASE NO.: 8:1O-cv-2140-T-17AEP
MICHAEL KAPLANIS,
Plaintiff,
vs.
JBI, INC. and JOHN BORDYNUIK,
Defendants.
DEFENDANTS JBI, INC.'S AND JOHN BORDYNUIK'S RESPONSE TO PLAINTIFF'S RESPONSE TO DEFENDANTS' MOTION TO DISMISS AND CROSS MOTION FOR LEAVE TO CONDUCT DISCOVERY ON PERSONAL JURISDICTION AND FOR LEAVE TO AMEND THE COMPLAINT AND MEMORANDUM OF LAW IN SUPPORT
Defendants, by and through their undersigned counsel, file this response to Plaintiffs Response to Defendants' Motion to Dismiss and Cross Motion for Leave to Conduct Discovery on Personal Jurisdiction and for leave to Amend the Complaint (hereinafter "Plaintiffs Response"). In this pleading, Defendants respond to Plaintiffs Cross Motion for Leave to Conduct Discovery on Personal Jurisdiction and for Leave to Amend the Complaint and in support state as follows:
MEMORANDUM OF LAW AND DISCUSSION
Defendant JBI moved to dismiss the Count II claim for Equitable Accounting against it. Defendant John Bordynuik moved to dismiss the Count II Equitable Accounting claim and the Count III claim for Negligent Misrepresentation for lack of personal jurisdiction.
In his pleading, Plaintiff combined his response to Defendants' Motion to Dismiss with a Cross Motion for leave to conduct discovery on personal jurisdiction and a request for leave to amend his Complaint. Significantly, Plaintiff did not certify in the Motion section of Plaintiff s Response that he had conferred with counsel for Defendants pursuant to Local Rule 3.0l(g). Plaintiff did not confer with counsel for Defendants regarding either his Cross Motion for leave to conduct discovery on personal jurisdiction or his request for leave to amend his Complaint. This Court has the power to deny Plaintiffs request for this failure to confer.
Defendants also oppose Plaintiffs request for leave to conduct discovery on personal jurisdiction on another ground. Until Plaintiff properly pleads an acceptable basis for personal jurisdiction over Defendant Bordynuik, Plaintiff should not obtain leave of Court to conduct discovery. As Plaintiff makes clear in his response to Defendant's Motion to Dismiss, he is not able to identify what section of the Florida Long Arm Statute would grant him personal jurisdiction over Bordynuik. Plaintiff stresses Bordynuik's failure to file an affidavit attesting to facts which demonstrate a lack of personal jurisdiction under the Florida Long Arm Statute. Plaintiff s argument misses the point. Bordynuik has nothing to refute. Plaintiff s allegations concerning the negotiation of a contract while Plaintiff was in Illinois and Bordynuik was in Canada do not support the assertion of personal jurisdiction over Bordynuik in Florida. In fact, Plaintiffs pleading contains allegations which strongly suggest that there would be no basis for Florida Long Arm Statute jurisdiction against Defendant Bordynuik. [1] Therefore, Defendants oppose Plaintiffs request to conduct further discovery on personal jurisdiction.
[1] See Paragraph 4 of Plaintiffs Complaint, which states, "[a]t all material times, Bordynuik was an individual serving as the President and CEO of JBI and residing in Ontario, Canada." Also see Paragraph 8 of Plaintiffs Complaint which says "(aJt the time Bordynuik made the representations, Michael Kaplanis was working for a high profile investment company in Chicago, Illinois.. ,,"
Possibly in recognition of his factual deficiencies, Plaintiff now seeks to amend his Complaint. Plaintiff does not clearly identify which facts that Plaintiff believes support separate claims for negligent representation, intentional representation and fraud against JBI or what additional counts for intentional misrepresentation and fraud that Plaintiff seeks leave to assert against Bordynuik. What Plaintiff s Response does state is that he "requests leave to amend to add a count for breach of an oral agreement by Mr. Bordynuik relating to his promise of stock ownership as detailed above."
As set out in paragraph 14 of Plaintiffs Complaint, Plaintiff purchased $60,000.00 worth of JBI, Inc. stock. Pursuant to paragraph 3(b) his Employment Agreement, Plaintiff was also given 100,000 shares of JBI stock. (See Employment Agreement attached to Defendants' Motion to Dismiss Counts II and III of Plaintiffs Complaint.) In paragraph 13 of his Complaint, Plaintiff admitted that he received the 100,000 shares of JBI stock. Attached to this response is a copy of the 100,000 Shares of JBI, Inc. Common Stock Certificate issued to Plaintiff. See Exhibit A. [Note – Exhibit A is not attached]
Inexplicably, Plaintiff now seems to be arguing that he should be allowed to amend his Complaint because he was promised 100,000 shares of stock that he did not receive. On page 2 of his Response, Plaintiff alleges that:
Pursuant to 48.193(1)(a), Mr. Bordynuik has conducted a business activity in this state by serving as a promoter of JBI stock, separate and apart from official JBI duties. Pursuant to Section 1 (b), Mr. Bordynuik has committed at least one tortious act in Florida by making certain misrepresentations to Plaintiff. Pursuant to Section 1 (f)(1), Mr. Bordynuik solicited Plaintiff to work for JBI by in part offering to Plaintiff Mr. Bordynuik's personal stock.
On page 3 of his Response, Plaintiff contends that "pursuant to 48.1 93(f), pleading in the alternative, Mr. Bordynuik has breached an oral promise to Plaintiff to devise him his personal Stock."
On page 8, Plaintiff continues by claiming that:
as evidenced by the above, Mr. Bordynuik engaged in the business of stock promotion in Florida pursuant to Section 48.193(1 )(a). He basically offered to devise his own personal stock in order to induce Plaintiff to work for the Company. Further, because Plaintiff did not receive the promised stock from Mr. Bordynuik, Mr. Bordynuik's representations regarding the same constitute fraud or another tortious act pursuant to Section 48.193(1 )(b). Additionally, pleading in the alternative, Mr. Bordynuik's breach of his oral promise to devise his personal stock to the Plaintiff constitutes breach of contract pursuant to Section 48.193(1 )(g).
Plaintiff's Response includes part of an alleged email trail between Plaintiff and Defendant Bordynuik which references stock coming from Defendant Bordynuik's JBI stock holdings. Plaintiff also cites to his Affidavit, which is attached as Exhibit A to his Response. On page 2, under point number 3, of Plaintiffs Affidavit, Plaintiff included another January 30,2010 email trail between Plaintiff and Bordynuik that refers to "l00k shares from my stock."
Also contained in Attachment 2 to Plaintiff s Affidavit is an email trail between Plaintiff and Bordynuik in which Plaintiff asked:
I was looking at Ron Baldwin's contract in the 8-K from October. It looks like this could be a good framework for my contract. We can remove the paragraph about severance that appears in Ron's contract. We can discuss employee contract terms, but I'm open to what you think makes sense.
Also, I was unsure if the gifting of the 100,000 share would be written into this agreement or if this would be a separate contract between you and I. If it needs to go in the Employment Agreement, let me know if you would like me to try to write this section.
Paragraph 3(b) of Plaintiffs Employment Agreement documented the 100,000 share promise. Paragraph 13 of Plaintiffs Complaint confirmed the fulfillment of that promise.
There is no dispute that Plaintiff received 100,000 shares of JBI stock, in a Certificate issued March 21,2010, as required by his Employment Agreement. [2] There is even a public filing with the Securities and Exchange Commission ("SEC") which documents that Bordynuik, as CEO of JBI, returned some of his personal shares to the Company's Treasury to be reissued. [3]
[2] It is interesting to note that Plaintiffs Affidavit, Paragraph 3, refers to the "offer" of the stock shares,
However, Plaintiff never states, under oath, that he did not receive the 100,000 shares.
[3] In an SEC filing available at sec.gov
JBI stated that "for the quarter year ended March 31, 2010, we generated $3,573,430 in revenues, and incurred a net loss of $3,296,609, of which $2,369,900 was attributable to shares issued to various JBI Inc. employees as stock compensation, These share issues were expensed by the Company even though they did not cause any dilutive impact for existing shareholders due to the return of21 million shares to treasury from the CEO's personal shares.. .."
While the standard Courts apply when deciding whether to grant leave to amend can be lenient, "[I]f a complaint as amended is still subject to dismissal, leave to amend need not be given." Halliburton & Associates, Inc. v. Henderson, Few & Co., 774 F.2d 441, 444 (11th Cir. 1985).
Here, since Plaintiff admitted in his Complaint that he received the 100,000 shares of JBI stock, any claim for non-receipt would be subject to immediate dismissal.
Therefore, Defendants oppose Plaintiff s request for leave to amend his Complaint.
WHEREFORE, Defendants, JBI, INC. and JOHN BORDYNUIK, respectfully request that this Court deny Plaintiffs Motion for Leave to Conduct Discovery on Personal Jurisdiction and for Leave to Amend the Complaint and for such further relief as this Court deems just and equitable under the circumstances.
DATED: December 17,2010
/s/ Cathy J. Beveridge
Cathy J. Beveridge, Esquire
Florida Bar No.: 0831018
FOWLER WHITE BOGGS P.A.
501 E. Kennedy Boulevard, Suite 1700
Tampa, Florida 33602-5239
(813) 228-741 lIFacsimile: (813) 229-8313
cbeveridge@fowlerwhite.com
Counsel for Defendants |
