Case 0:15-cv-60581-WPD Document 34 Entered on FLSD Docket 06/23/2015 Page 1 of 12

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 15-60581-CIV-DIMITROULEAS/SNOW
BARBARA BRUNNER, individually and for all others
similarly situated,
Plaintiff,
vs.
TEXAS A&M UNIVERSITY 12th MAN
FOUNDATION a/k/a THE 12TH MAN
FOUNDATION,
Defendant.
_____________________________________/
ORDER GRANTING MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendants Motion to Dismiss (the Motion)
[DE 30], filed herein on April 24, 2015. The Court has carefully reviewed the Motion [DE 30], the
Response [DE 32], and the Reply [DE 33]; the Court is otherwise fully advised in the premises.
I.

Background

The parties to this action are Barbara Brunner, Plaintiff, individually and for all others
similarly situated, and Texas A&M 12th Man Foundation (the Foundation), Defendant. Plaintiff
commenced this action on March 19, 2015. On May 8, 2015, Plaintiff filed the Second Corrected
First Amended Complaint (SCFAC). [DE 31].1 The SCFAC alleges breach of contract,
promissory estoppel, misrepresentation, and seeks a declaratory judgment regarding Plaintiffs
and others rights under their contracts with the Foundation. Plaintiff seeks, in addition to
declaratory relief, specific performance, damages, an incentive award for bringing the action, and
1

The Motion to Dismiss refers to the Corrected First Amended Complaint [DE 26]. However, the more recently-filed
SCFAC is exactly the same except that it replaces and adds Exhibits. See [DE 31 at n. 1].

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attorney fees and expenses.

Plaintiff alleges that she and others, known as Personally Endowed Donors, paid
substantial amounts of money to the Foundation in return for various benefits. [DE 31 1]. These
benefits included tickets to Texas A&M University (TAMU) home football games in best
available seating locations, game day parking in best available locations for home games, and
tickets (free or at face value) for all away games. [DE 31 2]. Until 1992, the benefits were
promised to be for the endowed donor and joint holders lifetimes; from 1992 and after, the
benefits were promised for 30 years. [DE 31 2]. The seating benefits were to be continually
upgradeable to the best available seat locations as such locations became available. [DE 31 2].
Plaintiff became an Endowed Donor in 1983 while she was completing her third year at
TAMU. [DE 31 16, 27]. Plaintiff met with the Executive Director of the Foundation (known at
the time as the Aggie Club) twice, who explained the program and made various promises
regarding the benefits Plaintiff would receive.2 [DE 31 16-25]. In reliance, Plaintiff ultimately
paid $17,500 for the lifetime use of two seats in an established location in the TAMU football field
known as Kyle Field, upgradeable at no additional cost upon availability of better seats, and for
other benefits. [DE 31 13].
Plaintiff alleges that in 2005, the Foundation instituted the Priority Point Program, and
thereby began to violate its contracts with the Permanently Endowed Donors by reclaiming and
reselling some of the benefits promised to them. [DE 31 3-5]. In 2007, Plaintiff alleges that she
was given a less desirable parking location for home games at Kyle Field, in contravention of the
Foundations guaranteed best available parking. [DE 31 29]. In 2013, the Foundation
announced a redevelopment of Kyle Field and instituted the mandatory Kyle Field Reseating
2

TAMU alumni and football players are colloquially known as Aggies.

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Plain, which Plaintiff alleges has forced or will force Permanently Endowed Donors to either
accept inferior seating locations or to make large payments. [DE 31 5, 34]. Plaintiff received a
letter from the Foundation detailing the plan while she was living in Fort Lauderdale, Florida; in
response to what Plaintiff considered the Foundations breach of the Endowed Donor agreement,
Plaintiff spoke with, and then wrote, the Foundations current Executive Director, Skip Wagner.
[DE 31 15, 35]. On January 9, 2015, Plaintiff, from Florida, faxed to the Foundation a
completed version of an application and credit card authorization necessary to receive tickets and
benefits for the 2015 football season, though Plaintiff believes that requiring the payments
authorized by the fax amounts to a breach of her 1983 agreement with the Foundation. [DE 31-1,
40].
The Foundation seeks dismissal under Federal Rule of Civil Procedure 12(b)(2), for lack of
personal jurisdiction; 12(b)(3), for improper venue; and 12(b)(1), for lack of subject matter
jurisdiction.
II.

Personal Jurisdiction
a. Standard of Review

Both the state long-arm statute and the Due Process Clause of the Fourteenth Amendment
must be satisfied in order for a federal court to have personal jurisdiction over a nonresident
defendant. Posner v. Essex Ins. Co., 178 F.3d 1209, 1214 (11th Cir. 1999). First, the Court must
determine whether the Florida long-arm statute provides a sufficient basis for personal
jurisdiction. Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 626 (11th Cir. 1996). After
deeming jurisdiction appropriate under Florida law, the Court must then ascertain whether
sufficient minimum contacts exist between the defendant[] and the forum state so as to satisfy

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traditional notions of fair play and substantial justice under the Due Process Clause of the
Fourteenth Amendment. Id. (internal quotation and citation omitted).
The burden is on the plaintiff to allege a prima facie case; the plaintiff must do so by
affidavit only if the challenging defendant provides his own affidavits in support. Posner, 178 F.3d
at 1214. To the extent not contradicted by the defendants affidavits, the court should accept the
facts alleged in the complaint as true. Id. In the event of a conflict, all reasonable inferences should
be made in favor of the plaintiff. See Landia Intl, Inc. v. Ah Koy, 690 F. Supp. 2d 1317, 1327 (S.D.
Fla. 2010).
When a federal court uses a state long-arm statute, because the extent of the statute is
governed by state law, the federal court is required to construe it as would the states supreme
court. Diamond Crystal Brands, Inc. v. Food Movers Intl, Inc., 593 F.3d 1249, 1258 (11th Cir.
2010) (quoting Lockard v. Equifax, Inc., 163 F.3d 1259, 1265 (11th Cir.1998)). Moreover, the
Eleventh Circuit has noted that the statute should be strictly construed. See Oriental Imports and
Exports, Inc. v. Maduro & Curiel=s Bank, 701 F.2d 889, 891 (11th Cir.1983) (internal citations
omitted).
b. Analysis
For the following reasons, the Court finds that Plaintiff has failed to allege facts
establishing personal jurisdiction over the Foundation.
i. Specific Jurisdiction
The Florida long-arm states, in relevant part, that:
(1)(a) A person, whether or not a citizen or resident of this state, who personally or through
an agent does any of the acts enumerated in this subsection thereby submits himself or
herself and, if he or she is a natural person, his or her personal representative to the
jurisdiction of the courts of this state for any cause of action arising from any of the
following acts:
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1. Operating, conducting, engaging in, or carrying on a business or business

venture in this state or having an office or agency in this state.
2. Committing a tortious act within this state
...
6. Causing injury to persons or property within this state arising out of an act or
omission by the defendant outside this state, if, at or about the time of the injury,
either:
a. The defendant was engaged in solicitation or service activities within this state;
or
b. Products, materials, or things processed, serviced, or manufactured by the
defendant anywhere were used or consumed within this state in the ordinary
course of commerce, trade, or use.
7. Breaching a contract in this state by failing to perform acts required by the
contract to be performed in this state.
Fla. Stat. 48.193.
The Court will discuss each of the relevant provisions in turn.
Subsection (1)(a)(7): Breaching a Contract in Florida
Personal jurisdiction under subsection (1)(a)(7) requires that the defendant have failed to
perform acts required by the contract to be performed in Florida. High Country Ins. Agency v.
Admin. Mgmt. Servs. Syndicate, Ltd., 549 So. 2d 776, 776 (Fla. 3d DCA 1989). Plaintiff argues
that because TAMU is now part of the Southeastern Conference (the SEC), the Aggies will play
another team, the Gators, in Florida sometime during her lifetime and she reasonably anticipates
the Foundations breach of its requirement to provide her with best available tickets to such
future game. Defendant asserts that such an away game is merely speculative at this time, and has
proffered evidence that TAMU has not played the Gators since 1962 and is not currently scheduled
to play there again until 2017. [Second Wagner Declaration, DE 33-1 11].
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The Court finds that a future ticket transaction surrounding a potential, yet unscheduled3
game does not amount to the Foundation having failed to perform acts required by a contract in
Florida.4 See JB Oxford Holdings, Inc. v. Net Trade, Inc., 76 F. Supp. 2d 1363, 1367 n. 8 (S.D. Fla.
1999) ([T]he court will not consider mere potential, future events to determine whether
jurisdiction exists now).
Subsection (1)(a)(2): Committing a Tortious Act
Under the committing a tortious act prong, a court may assert jurisdiction over a
nonresident defendant who commits a tort outside of the state that causes injury inside the state,
meaning [t]he defendants physical presence is not required if the tort causes an injury in
Florida. Brennan v. Roman Catholic Diocese of Syracuse New York, Inc., 322 F. Appx 852, 854
(11th Cir. 2009) (internal citations omitted). [T]elephonic, electronic, or written communications
into Florida provide a basis for jurisdiction if the tort arises from the communications and
depend[s] upon proof of either the existence or the content of any of the communications.
Brennan v. Roman Catholic Diocese of Syracuse New York, Inc., 322 F. Appx 852, 854 (11th Cir.
2009) (internal quotations omitted). The court must of necessity determine whether [the plaintiff]
states a cause of action in tort, in order to determine jurisdiction. 8100 R.R. Ave. Realty Trust v.
R.W. Tansill Const. Co., 638 So. 2d 149, 151 (Fla. 4th DCA 1994).
Plaintiff argues that the Foundation committed the tort of misrepresentation which caused
injury to Plaintiff through: (1) false representations which were communicated to her via a

The date has yet to be set for the 2017 TAMU game in Gainesville.
The cases cited by Plaintiff do not compel a different decision. In Pellerito, the court found that the defendant
breached a contract in Florida by failing to make payments which were clearly . . . to be made in Florida. Pellerito
Foods, Inc. v. Am. Conveyors Corp., 542 So. 2d 426, 428 (Fla. 3d DCA 1989). Similarly, in Baker Electronics, Inc. v.
Pentar Sys., Inc., 219 F. Supp. 2d 1260, 1263 (M.D. Fla. 2002), the defendant failed to deliver design specifications to
a warehouse in Florida as provided for in the contract.
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telephone call from Wagner while she was in Florida;5 and (2) the anticipated future failure of the
Foundation to provide her with benefits at the yet-unscheduled Aggie-Gator games. Plaintiff
elaborates that she has been harmed not only by the Foundations breach of contract, but also by
the misrepresentations it made to her in Florida about her rights under the Endowment
Agreement. [DE 32 at 12]. Plaintiff has failed to allege a cause of action for misrepresentation, as
[m]isrepresentations relating to the breaching partys performance of a contract do not give rise to
an independent cause of action in tort, because such misrepresentations are interwoven and
indistinct from the heart of the contractual agreement. Hotels of Key Largo, Inc. v. RHI Hotels,
Inc., 694 So. 2d 74, 78 (Fla. 3d DCA 1997). Therefore, Plaintiff has not alleged facts sufficient to
form a basis of jurisdiction under the committing a tortious act prong.
Subsection 1(a)(1): Carrying on a Business in Florida
Plaintiff argues that the Foundation is subject to personal jurisdiction under subsection
(1)(a)(1), which would subject the Foundation to to the jurisdiction of the courts of this state for
any cause of action arising from . . . [o]perating, conducting, engaging in, or carrying on a business
or business venture in [Florida]. There must be a direct affiliation, nexus, or substantial
connection between the basis for the cause of action and the business activity. Citicorp Ins.
Brokers (Marine), Ltd. v. Charman, 635 So. 2d 79, 82 (Fla. 1st DCA 1994).
In support, Plaintiff alleges that the Foundation, as principal or as agent of TAMU,
advertises and promotes SEC athletic contests, sells tickets in Florida to SEC events held in
Florida and elsewhere, and assist[s] in the conduct of athletic contests involving TAMU athletes
being played in Florida. [DE 31 47]. Plaintiff also alleges that the Foundation solicits donations
5

While the Complaint details several pieces of mail sent by the Foundation to Plaintiff while she lived in Florida,
Plaintiff has indicated the Foundation used her parents address in Texas; it is Plaintiffs parents that forwarded her
mail to Florida upon receipt. [DE 32-2 3].

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and contributions in Florida and it sells, and/or licenses the sale of tickets, merchandise, and
services related to TAMU football and events by conduct directed at the Florida market. [DE 31
48]. Even viewing these allegations in the light most favorable to Plaintiff and assuming they are
uncontroverted and sufficient to constitute conducting or carrying on a business under the statute,
Plaintiffs cause of action does not arise from such actions.
Subsection (1)(a)(6): Causing Injury While Engaged in Solicitation
Finally, Plaintiff alleges that personal jurisdiction is conferred by subsection (1)(a)(6),
because the Foundation was involved in solicitation activities in Florida at the time it caused injury
to persons or property in Florida. However, economic losses are insufficient under this prong,
which requires personal injury or physical property damage. Aetna Life & Cas. Co. v.
Therm-O-Disc, Inc., 511 So. 2d 992, 994 (Fla. 1987); accord Sun Bank, N.A. v. E.F. Hutton & Co.,
926 F.2d 1030, 1033 (11th Cir. 1991). Plaintiff has not alleged injury to her physical person
property, therefore this subsection is inapplicable.
ii. General Jurisdiction
Pursuant to Floridas general jurisdiction, a defendant may be haled into a Florida court if it
is engaged in substantial and not isolated activity within [the] state, whether such activity is
wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state,
whether or not the claim arises from that activity. Fla. Stat. 48.193(2). While Floridas specific
jurisdiction requires the plaintiff to establish connexity between the injuries suffered and the
defendants contacts, Floridas general jurisdiction does not. See Woods v. Nova Companies Belize
Ltd., 739 So. 2d 617, 620 (Fla. 4th DCA 1999) (citing Helicopteros Nacionales de Colombia S.A.
v. Hall, 466 U.S. 408, 416 (1984)).
If Plaintiff relies on Fla. Stat. 48.193(2), then Plaintiff must show that the Foundation
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engaged in substantial activity in Florida. Florida courts have interpreted substantial and not
isolated activity to mean continuous and systematic general business contact. Id. Indeed, in
order for a defendant to fall within Floridas general jurisdiction, a defendants contacts must be
so extensive to be tantamount to [the] defendant being constructively present in the state to such a
degree that it would be fundamentally fair to require it to answer in the forum states courts in any
litigation arising out of any transaction or occurrence taking place anywhere in the world. Exhibit
Icons, LLC v. XP Companies, LLC, 609 F. Supp. 2d 1282, 1295 (S.D. Fla. 2009). The Court finds
that Plaintiffs allegations and proffered materials have failed to satisfy this high bar.
iii. Constitutional Inquiry
As the Court has found that personal jurisdiction is inappropriate under the Florida
long-arm statute, a lengthy due process inquiry is not necessary. The second prong of the personal
jurisdiction inquiry focuses on whether sufficient minimum contacts exist between the
defendants and the forum state so as to satisfy traditional notions of fair play and substantial
justice. Sculptchair, 94 F.3d at 626 (quoting International Shoe v. Washington, 326 U.S. 310,
316 (1945)). However, the Due Process Clause imposes a more restrictive requirement than does
Floridas Long-Arm Statute. Melgarejo v. Pycsa Panama, S.A., 537 F. Appx 852, 859 (11th Cir.
2013) (citation omitted). Consequently, a finding that jurisdiction is not available under Floridas
general jurisdiction compels the conclusion that jurisdiction is not appropriate under the Due
Process clause.
III.

Venue

Even if the Court had personal jurisdiction over the Foundation, venue is not proper in the
Southern District of Florida. Pursuant to 28 U.S.C. 1391, a civil action may be commenced in:
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(1) a judicial district in which any defendant resides, if all defendants are residents
of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving
rise to the claim occurred, or a substantial part of property that is the subject of
the action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided in
this section, any judicial district in which any defendant is subject to the court's
personal jurisdiction with respect to such action.
28 U.S.C. 1391(b).
Plaintiff does not dispute that the only Defendant, the Foundation, does not reside in
Florida. Rather, Plaintiff argues that venue is proper in this district pursuant to 28 U.S.C.
1392(b)(2), because a substantial part of the events giving rise to this action occurred in Florida or
will occur in Florida. The Court should consider [o]nly the events that directly give rise to the
claim . . .[a]nd of the places where the events have taken place, only those locations hosting a
substantial part of the events. Jenkins Brick Co. v. Bremer, 321 F.3d 1366, 1371 (11th Cir.
2003). The focus of a venue inquiry is on the defendant and any actions taken by the defendant.
Hemispherx Biopharma, Inc. v. MidSouth Capital, Inc., 669 F. Supp. 2d 1353, 1359 (S.D. Fla.
2009) (citing Jenkins, 321 F.3d at 1371-72).
The substantial part of the events identified by Plaintiff are: (1) the false
communications about [Plaintiffs] rights under the Endowment Agreement . . . delivered to her in
Florida; and (2) the anticipated future breach of the agreement when the Foundation may refuse to
provide Plaintiff with tickets to Aggie-Gator games at no cost. As previously noted, all mail
communications from the Foundation were sent to Plaintiffs Texas address. As Defendant notes,
while Plaintiff alleges that false communications took place in the form of e-mail and a phone call,
there is no evidence that the Foundation even knew that Plaintiff was located in Florida at the time
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that it replied to her e-mails and calls. Moreover, any relevant Aggie-Gator game has not yet
occurred as required by 28 U.S.C. 1391(2).
The formation of the relevant agreement and the promises surrounding such formation
occurred in Texas. The bulk of the benefits allegedly conferred by the agreement were to be and
remain to be performed in Texas. The vast majority of the communications regarding the
agreement and alleged breach were sent to Plaintiff from Texas to her Texas mailing address. The
combination of a phone call and e-mails to Plaintiff, who happened to be located in Florida at the
time, along with football games that have yet to be scheduled or take place do not amount to a
substantial part of the events giving rise to Plaintiffs claim.
IV.

Conclusion

For the foregoing reasons, the Court finds that Plaintiff has failed to establish personal
jurisdiction over the Foundation and that venue in this district is improper.6 Accordingly, it is
ORDERED AND ADJUDGED as follows:
1. The Motion [DE 30] is hereby GRANTED;
2. This case is DISMISSED; and
3. The Clerk is directed to CLOSE this case and DENY any pending motions as moot.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this
23rd day of June 2015.

The Court need not reach the issue of whether there is subject matter jurisdiction over the class claim under the Class
Action Fairness Act, 28 U.S.C. 1332(a).

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Copies furnished to:

Counsel of record

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