Robert C. Courboin v. Candace Scott , 596 F. App'x 729 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-11644
Non-Argument Calendar
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D.C. Docket No. 8:13-cv-03109-JSM-TGW
ROBERT C. COURBOIN,
Plaintiff-Appellant,
versus
CANDACE SCOTT,
DENISE WENNOGLE,
SCOTT AND DALY, LLC,
CANDACE SCOTT, LLC,
JAMES JENSEN, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
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(December 1, 2014)
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Before TJOFLAT, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Robert Courboin, proceeding pro se, appeals the district court’s dismissal of
his complaint asserting claims under the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. §§ 1961–1968, and the Sherman Antitrust
Act, 15 U.S.C. §§ 1, 2. On appeal, Courboin argues that the district court had
personal jurisdiction over the defendants because RICO allows for nationwide
service of process and that his complaint stated valid claims for relief.
I.
Courboin filed this action in the United States District Court for the Middle
District of Florida in December 2013. The facts on which the complaint is based
arose during and over the course of Courboin’s divorce proceedings in New Jersey,
which concluded in 2011. At some point during the proceedings, Courboin moved
from New Jersey to Florida.
Courboin was represented in the divorce by James Jensen and the law firm
of Laufer, Dalena, Cadicina, Jensen and Boyd, LLC (“Jensen defendants”).
Candace Scott, Denise Wennogle, and the law firms of Candace Scott, LLC, and
Scott and Daly, LLC (“Scott Defendants”), represented Courboin’s ex-wife.
Kalman A. Barson and the Barson Group (“Barson defendants”), and Arthur J.
Smith and Arthur J. Smith Appraisals, LLC (“Smith defendants”), were hired by
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Scott to appraise marital assets for Courboin’s ex-wife as part of the divorce
proceedings. These attorneys and appraisers are the defendants in this action.
Courboin alleged in his complaint that he was illegally deprived of about
$200,000 from his pre-divorce household assets as a result of the following
conduct: (1) Scott overbilled Courboin’s ex-wife and depleted the marital assets
by using large and unnecessary form interrogatories during the divorce
proceedings, which caused Courboin to be billed large amounts by Jensen to
respond to the interrogatories; (2) Scott hired Barson and Smith to appraise marital
assets, and Barson and Smith charged his wife inflated rates and used outdated
forms, again depleting the marital assets; and (3) Jensen refused to cross-examine
Barson about his exorbitant fees during the proceedings. With respect to one of the
appraisals, Courboin alleged that Barson charged his ex-wife $56,000 to appraise
her interest in certain business assets, valued at around $190,000, whereas
Courboin had had the same assets appraised by a more reputable firm at a cost of
$6,250. Courboin further alleged that he had witnesses and a neutral appraiser who
would testify that “attorneys demand a ‘cut’ of up to 50% when they send an
appraisal request to [appraisers].”
Based on these allegations, Courboin asserted that the defendants had
violated RICO and the Sherman Act by stealing his and the people of New Jersey’s
money through their legal and appraisal practices.
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The Smith and Scott defendants filed motions to dismiss based on, among
other things, lack of personal jurisdiction, asserting that they had no substantial
contacts with Florida and that all acts or omissions alleged in the complaint
occurred outside of Florida. Courboin responded to the Smith defendants’ motion,
but he did not address personal jurisdiction. The Barson and Jensen defendants did
not file responsive pleadings or motions to dismiss. 1
The district court granted the two motions to dismiss and dismissed the
complaint in its entirety as to all defendants. The court first found that it lacked
personal jurisdiction over all defendants because Courboin had not alleged any
facts showing that the defendants had sufficient “minimum contacts” with Florida.
Furthermore, assuming that it had jurisdiction to decide the controversy, the court
found that (1) Courboin failed to state a claim for which relief may be granted
under either RICO or the Sherman Act; (2) the complaint should be dismissed as to
all parties because it was frivolous, the non-moving defendants were similarly
situated to the moving defendants, and the claims against all defendants were
integrally related; and (3) venue was improper. This appeal followed.
II.
We review the district court’s dismissal of an action for lack of personal
jurisdiction de novo. Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990).
1
In response to Courboin’s summons, Kalman Barson wrote a personal letter to
Courboin, which was then entered on the docket as an “Answer.”
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III.
In the context of a motion to dismiss for lack of personal jurisdiction in
which no evidentiary hearing is held, the plaintiff must establish a prima facie case
of jurisdiction over a non-resident defendant. Id. at 1514; Morris v. SSE, Inc., 843
F.2d 489, 492 (11th Cir. 1988). In assessing a plaintiff’s prima facie case, the
court must accept the facts alleged in the complaint as true to the extent that they
are uncontroverted by the defendant’s affidavits. Madara, 916 F.2d at 1514.
A.
When analyzing a dismissal for lack of personal jurisdiction, “we first
determine whether the applicable statute potentially confers jurisdiction over the
defendant.” Republic of Panama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d
935, 942 (11th Cir. 1997). Jurisdiction over a non-resident defendant may be
based upon a federal statute or a state long-arm statute. If a basis exists for
exercising jurisdiction, we “then determine whether the exercise of jurisdiction
comports with due process.” Id.
We have held that there is a potential statutory basis for personal jurisdiction
under RICO because the statute provides for nationwide service of process. Id.;
see 18 U.S.C. § 1965(d). The Sherman Act, by contrast, does not have a
nationwide service-of-process provision, so we must look to the state long-arm
statute as a basis for exercising jurisdiction. See Delong Equip. Co. v. Washington
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Mills Abrasive Co., 840 F.2d 843, 847-48 (11th Cir. 1988). For that reason, the
personal-jurisdiction analysis differs for each type of claim. We address the RICO
claims first.
1. RICO Claims
Despite the fact that RICO contains a nationwide service-of-process
provision, Courboin is entitled to take advantage of it only if his “asserted federal
claim is not wholly immaterial or insubstantial.” Republic of Panama, 119 F.3d at
941-42 (stating that, under RICO and other statutes with nationwide service-of-
process provisions, a court “should dismiss for lack of jurisdiction only if the right
claimed is so insubstantial, implausible, foreclosed by prior decisions of this Court,
or otherwise devoid of merit as not to involve a federal controversy” (internal
quotation marks omitted)). In other words, whether a basis exists for exercising
personal jurisdiction under RICO depends on whether Courboin has stated a
“colorable” RICO claim. Id. at 942. If Courboin has not stated a colorable claim,
we do not address the applicable due-process requirements.
The federal civil RICO provision “permits any person injured in his business
or property by reasons of a violation of RICO’s criminal provisions to recover
treble damages and attorney’s fees.” McCaleb v. A.O. Smith Corp., 200 F.3d 747,
751 (11th Cir. 2000) (brackets and internal quotation marks omitted); see 18
U.S.C. § 1964(c). In order to establish a RICO violation, a plaintiff must prove
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four elements: “(1) conduct (2) of an enterprise (3) through a pattern (4) of
racketeering activity.” Williams v. Mohawk Indus., Inc., 465 F.3d 1277, 1282
(11th Cir. 2006) (quotation marks omitted); see 18 U.S.C. § 1962.
In his complaint, Courboin alleged the following: (1) his ex-wife’s attorney,
Scott, hired a business appraiser, Barson, who charged an exorbitant rate; (2) Scott
hired a real-estate appraiser, Smith, who used an outdated form, charged 60% more
than Courboin’s appraiser, and did not advertise in the phonebook; (3) Courboin’s
attorney, Jensen, refused to cross-examine Barson on the amount of his fees,
ostensibly for the tactical reason of not gaining the judge’s ire; (4) Scott sent
Courboin burdensome discovery requests not needed for the divorce proceeding,
which Jensen charged an excessive amount to respond to and failed to challenge;
(5) over $200,000 went to pay attorneys and experts in his divorce proceedings;
and (6) an appraiser not affiliated with his divorce has indicated that unnamed
attorneys demand a 50% cut when they send an appraisal referral.
Upon review of Courboin’s complaint, we conclude that he has not stated a
colorable federal RICO claim, so he may not rely on RICO’s nationwide service-
of-process provision. See Republic of Panama, 119 F.3d at 941-42. First,
assuming that the conduct alleged on the part of the defendants in this case was
highly unethical, Courboin still has not identified any predicate acts that could
constitute “racketeering activity” under RICO. The phrase “racketeering activity”
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is defined as including any predicate act which is indictable under a lengthy list of
federal criminal offenses, including robbery and mail and wire fraud, as well as
certain limited state offenses. 18 U.S.C. § 1961(1). A “pattern” of such activity is
two or more related predicate acts. Williams, 465 F.3d at 1283.
While Courboin makes broad allegations of corruption and theft in the New
Jersey family courts, he does not connect these allegations to any predicate act as
defined by 18 U.S.C. § 1961. Nor does our review of that provision indicate any
qualifying predicate act that is implicated by Courboin’s specific factual
allegations. See id. § 1961(1)(A)-(B). The closest match we can find appears to be
federal wire or mail fraud, but Courboin alleges no mailings and no signals
transmitted interstate by wire, as required by 18 U.S.C. §§ 1341 and 1343,
respectively. Robbery under New Jersey law does not work because, among other
reasons, Courboin has made no allegations of “intimidating or assaultive conduct.”
State v. Lopez, 900 A.2d 779, 784 (N.J. 2006). No other qualifying predicate acts
appear even conceivably to be implicated. Thus, Courboin has not shown any
“racketeering activity,” let alone a “pattern” of such activity.
Courboin also did not allege any facts plausibly supporting an inference that
the defendants “conduct[ed] . . . an enterprise.” To show “conduct of an
enterprise,” a plaintiff must establish that a group of persons associated together
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for the common purpose of engaging in an ongoing course of criminal conduct.
Williams, 465 F.3d at 1283-84.
While Courboin asserts that the defendants’ goal was to steal money, at
most, his allegations support a claim that (1) Barson and Smith overbilled his wife,
(2) Courboin disagreed with Jensen’s tactical choices, and (3) Scott and Jensen
performed work that Courboin thought was unnecessary to Courboin’s divorce.
The mere fact that attorneys and appraisers interact in divorce proceedings,
however, does not mean or even plausibly suggest, in and of itself, that all of the
defendants were in cahoots and were conducting an “enterprise.” Moreover, even
if some attorneys generally demand a “cut” of appraisal fees, Courboin has not
stated any factual allegations indicating that any attorneys in this case did so.
While we are certainly troubled by Courboin’s allegations of unethical behavior on
the part of the defendants in this case, the allegations simply do not support a
colorable claim that an enterprise engaged in a pattern of racketeering activity in
this case. See 18 U.S.C. § 1961(1).
Consequently, we conclude that Courboin’s allegations under RICO do not
rise to the level of a colorable federal controversy. See Republic of Panama, 119
F.3d at 941-42. Courboin cannot, therefore, take advantage of the nationwide
service-of-process provision in RICO as a basis for exercising personal jurisdiction
over the defendants. Id.
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2. Sherman Act Claims
Because the Sherman Act does not contain a nationwide service-of-process
provision, we look to the long-arm statute of Florida to determine whether it
authorizes exercising jurisdiction over the defendants. 2 See Delong Equip. Co, 840
F.2d at 847-48; Fed. R. Civ. P. 4(e). Under the Florida long-arm statute, specific
personal jurisdiction exists if, among other things, the defendant injures persons
within Florida due to an act or omission outside Florida if, at the time of injury,
(1) the defendant was engaged in solicitation or service activities within Florida or
(2) his services were used within Florida in the ordinary course of business. Fla.
Stat. § 48.193(1)(a)6. The statute also provides for general jurisdiction over a
defendant “who is engaged in substantial and not isolated activity” in Florida. Id.
§ 48.193(2). Florida’s Supreme Court has held that economic injury,
unaccompanied by physical injury or property damage, is insufficient to subject a
non-resident defendant to personal jurisdiction under § 48.193(1)(a)6. See Aetna
Life & Cas. Co. v. Therm-O-Disc, Inc., 511 So. 2d 992, 994 (Fla. 1987)
(concerning Fla. Stat. § 48.193(1)(f), which later became § 48.193(1)(a)6).
When a state long-arm statute provides the basis for jurisdiction, the exercise
of jurisdiction must comport with due-process requirements under the Fourteenth
2
To the extent that Courboin also alleged claims under the Florida RICO Act, see Fla.
Stat. § 772.101, the analysis of personal jurisdiction for such claims would also be addressed
under the Florida long-arm statute and is therefore the same as for the Sherman Act claims.
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Amendment. 3 Madara, 916 F.3d at 1514. In essence, jurisdiction is proper only
“where the defendant’s contacts with the forum proximately result from actions by
the defendant himself that create a ‘substantial connection’ with the forum state,”
such that the defendant “should reasonably anticipate being haled into court there.”
Id. at 1516-17 (emphasis in original) (citing Burger King Corp. v. Rudzewicz, 471
U.S. 462, 474-75, 105 S. Ct. 2174, 2182-83 (1985)). Therefore, “the unilateral
activity of those who claim some relationship with a nonresident defendant cannot
satisfy the requirement of contact with the forum State.” Id. (quoting Hanson v.
Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1239-40 (1958)).
The district court did not have a basis for exercising jurisdiction over the
moving defendants pursuant to the Florida long-arm statute. The Scott defendants
presented uncontroverted testimony that they did not solicit or conduct business in
Florida. Moreover, Courboin alleged only economic injury and did not contend
that the Scott or Smith defendants solicited or conducted business in Florida. See
Fla. Stat. § 48.193(1)(a)6; Aetna Life & Cas. Co., 511 So. 2d at 994. In any case,
the district court’s exercise of jurisdiction over these defendants would not
comport with Fourteenth Amendment due-process requirements. See Madara, 916
F.3d at 1514. The defendants had no “substantial connection” with Florida either
3
By contrast, when a federal statute like RICO provides the basis for personal
jurisdiction, the exercise of jurisdiction must comport with due-process requirements under the
Fifth Amendment. Republic of Panama, 119 F.3d at 942. While similar, the due-process
protections offered by the respective amendments are not identical. See id. at 944-46.
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through the conduct out of which Courboin’s complaint arose or more generally.
See id. at 1516-17. Further, Courboin’s unilateral decision to move to Florida
during the divorce proceedings was insufficient to create jurisdiction. See id. at
1516.
3. Non-Moving Defendants
For the same reasons discussed above, the district court also did not err in
dismissing Courboin’s complaint based on its lack of personal jurisdiction over the
non-moving defendants. A district court may on its own motion dismiss an action
as to defendants who have not moved to dismiss where such defendants are in a
position similar to that of moving defendants or where claims against such
defendants are integrally related. Loman Dev. Co. v. Daytona Hotel & Motel
Suppliers, Inc., 817 F.2d 1533, 1537 (11th Cir. 1987); see Tazoe v. Airbus S.A.S.,
631 F.3d 1321, 1336 (11th Cir. 2011) (stating that a district court can dismiss an
action on its own motion only if it does so fairly, usually by providing notice and
an opportunity to respond, but noting an exception to this rule where reversal
would be futile).
Here, the non-moving defendants were similarly situated to the moving
defendants, as all acts or omissions alleged in the complaint occurred in New
Jersey during Courboin’s divorce proceedings. See Loman Dev. Co., 817 F.2d at
1537. Any potential unfairness of the district court’s dismissal was eliminated by
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Courboin’s opportunity to respond to the jurisdictional issues raised by the Scott
and Smith defendants’ motion to dismiss. See id. Furthermore, Courboin made no
jurisdictional allegations as to any of the defendants, and apart from citing to
RICO’s nationwide service-of-process provision, makes no jurisdictional argument
under Florida law on appeal. Thus, reversal as to these defendants would be futile.
See Tazoe, 631 F.3d at 1336. Accordingly, we affirm the part of the district court’s
order dismissing the complaint for lack of personal jurisdiction over all defendants.
B.
Although the district court correctly concluded that it lacked personal
jurisdiction over all defendants, the court addressed the merits of Courboin’s
claims. We understand and appreciate the district court’s motivation to address the
merits of the claims in the alternative. Nevertheless, “a defendant that is not
subject to the jurisdiction of the court cannot be bound by its rulings,” so
jurisdictional questions generally should be decided before reaching the merits.
See Republic of Panama, 119 F.3d at 940; Madara, 916 F.2d at 1514 & 1514 n.1.
Moreover, where no personal jurisdiction exists and a dismissal on the merits
would be with prejudice, it is particularly appropriate to dismiss on jurisdictional
grounds and not address the merits. Republic of Panama, 119 F.3d at 940;
Madara, 916 F.2d at 1514 & 1514 n.1. For these reasons and because we find no
personal jurisdiction over the defendants in this case, we vacate the portion of the
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district court’s order dismissing the complaint with prejudice for failure to state a
claim and for frivolity.
IV.
In sum, we affirm the district court’s dismissal of Courboin’s complaint
without prejudice for lack of personal jurisdiction over the defendants, and we
vacate the part of the district court’s order that dismissed the complaint with
prejudice for failure to state a claim.
AFFIRMED IN PART, VACATED IN PART.
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