ZION WILLIAMSON v. PRIME SPORTS MARKETING, LLC ( 2020 )

Third District Court of Appeal
State of Florida
Opinion filed December 2, 2020.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D20-0197
Lower Tribunal No. 19-18705
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Zion Williamson,
Appellant,
vs.
Prime Sports Marketing, LLC, et al.,
Appellees.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, David C. Miller, Judge.
Weil, Gotshal & Manges LLP, and Edward Soto, Corey Berman, and Pravin
Patel, and Jeffrey S. Klein, Gregory Silbert, and Robert B. Niles-Weed (New York,
NY), and Zachary D. Tripp (Washington, DC), for appellant.
Eaton & Wolk, P.L., and Douglas F. Eaton, for appellees.
Before LOGUE, SCALES, and LINDSEY, JJ.
LINDSEY, J.
Appellant Zion Williamson (Defendant below) appeals from a non-final order
denying his motion to dismiss for lack of personal jurisdiction. 1 Because Appellee
Prime Sports Marketing, LLC (Plaintiff below) failed to allege sufficient
jurisdictional facts in its Complaint to bring its action within the ambit of Florida’s
long-arm statute, we reverse the denial of Williamson’s motion to dismiss for lack
of personal jurisdiction and remand without prejudice to amend.
I. BACKGROUND
Zion Williamson was a successful student athlete at Duke University during
the 2018-19 basketball season. In early 2019, Gina Ford, the owner of Prime Sports,
went to North Carolina on multiple occasions to discuss the possibility of Prime
Sports becoming Williamson’s agent for branding and marketing. Williamson
declared for the NBA Draft on April 15, 2019.2 Five days later, Williamson entered
into a Marketing and Branding Agreement (the “Agreement”) with Prime Sports at
his home in North Carolina.
The parties’ contractual relationship was short-lived. On May 31, 2019,
Williamson formally terminated his relationship with Prime Sports. Creative Artist
Agency, LLC (“CAA”), Williamson’s NBA agent, replaced Prime Sports as
1
Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i) authorizes appellate review
of non-final orders that determine “the jurisdiction of the person[.]”
2
As expected, Williamson was the No. 1 draft pick.
2
Williamson’s exclusive marketing agent. In June 2019, Williamson sued Prime
Sports in federal court in North Carolina, seeking, among other relief, a declaration
that the Agreement is unenforceable under North Carolina’s Uniform Athlete Agent
Act.
Despite the pending lawsuit in North Carolina, Prime Sports brought this
breach of contract and tort action against Williamson in Florida. 3 Williamson moved
to dismiss for lack of personal jurisdiction, arguing that the Complaint failed to
allege sufficient jurisdictional facts to bring the action within the ambit of Florida’s
long-arm statute or satisfy the constitutional minimum contacts requirement. In
support of his motion, Williamson submitted an affidavit reiterating that he is not a
Florida resident and that “[n]one of [his] interactions with [Prime Sports] occurred
in or related to Florida.” Ford submitted an Affidavit in opposition to Williamson’s
motion, which emphasized Prime Sports’ connections to Florida and Williamson’s
alleged communications with Prime Sports.
At the hearing on Williamson’s motion, Prime Sports primarily focused on its
undisputed contacts with Florida and Williamson’s communications with Prime
Sports. Williamson argued that the focus should be on his contacts with Florida and
3
Prime Sports also sued CAA and other individuals associated with CCA, but
Williamson is the only defendant who is a party to this appeal.
3
not Prime Sports’ contacts. The trial court ultimately denied Williamson’s motion
to dismiss, and Williamson timely appealed.
II. ANALYSIS
We review the trial court’s order denying Williamson’s motion to dismiss for
lack of jurisdiction de novo. See Phelan v. Lawhon, 229 So. 3d 853, 857 (Fla. 3d
DCA 2017) (citing Wendt v. Horowitz, 822 So. 2d 1252, 1256 (Fla. 2002)). The
issue in this case is governed by the two-pronged jurisdictional analysis set forth in
Venetian Salami Co. v. Parthenais, 554 So. 2d 499 (Fla. 1989). The first step in this
analysis, the statutory prong, is to determine whether the complaint alleges sufficient
jurisdictional facts to bring the action within the ambit of Florida’s long-arm statute,
section 48.193, Florida Statutes (2020). Id. at 502. If so, the next inquiry, the
constitutional prong, “is whether sufficient ‘minimum contacts’ are demonstrated to
satisfy due process requirements.” Id. (quoting Unger v. Publisher Entry Servs.,
Inc., 513 So. 2d 674, 675 (Fla. 5th DCA 1987)).
As this Court explained in Fincantieri-Cantieri Navali Italiani S.P.A. v.
Yuzwa, 241 So. 3d 938, 941–42 (Fla. 3d DCA 2018):
A key component of the Venetian Salami analysis is its
allocation of the burden of proof. Initially, the plaintiff
bears the burden of pleading sufficient jurisdictional facts
to fall within the long-arm statute. [Venetian Salami, 554
So. 2d at 502]. “If the allegations in the complaint
sufficiently establish long-arm jurisdiction, then the
burden shifts to the defendant to contest the jurisdictional
allegations in the complaint, or to claim that the federal
4
minimum contacts requirement is not met, by way of
affidavit or other similar sworn proof.” Belz Investco Ltd.
P’ship v. Groupo Immobiliano Cababie, S.A., 721 So. 2d
787, 789 (Fla. 3d DCA 1998). “If properly contested, the
burden then returns to the plaintiff to refute the evidence
submitted by the defendant, also by affidavit or similar
sworn proof.” Id. If the parties’ sworn proof is in conflict,
“the trial court must conduct a limited evidentiary hearing
to resolve the factual dispute.” Id.
(Citations and footnotes omitted).
Though lengthy, Prime Sports’ Complaint contains few jurisdictional
allegations. According to the Complaint, Williamson is a resident of South Carolina.
There are no allegations that directly state the trial court has jurisdiction over
Williamson. The only explicit jurisdictional allegation applicable to Williamson
relies on the Agreement’s choice of law provision: “[t]his Court further has
jurisdiction over the within matter as the contract given rise to the dispute herein by
its terms, conditions which were agreed upon by all parties to the contract herein, is
to be governed, interpreted and construed by the applicable laws of the State of
Florida.” It is undisputed on appeal that a choice of law provision alone is
insufficient to subject a nonresident defendant to personal jurisdiction. 4
4
Section 685.102(1), Florida Statutes (2020), authorizes a party, “to the extent
permitted under the United States Constitution, [to] maintain in this state an action
or proceeding against any person . . . located outside this state, if the action or
proceeding arises out of or relates to any contract . . . for which a choice of the law
of this state . . . has been made . . . and which contains a provision by which such
person . . . located outside this state agrees to submit to the jurisdiction of the courts
of this state.” (Emphasis added).
5
Florida’s long-arm statute, section 48.193, lists specific acts that could subject
a nonresident defendant to personal jurisdiction in Florida. 5 Prime Sports argues
there are sufficient allegations in the Complaint to bring the action within the
following three provisions of Florida’s long-arm statute:
1. “Breaching a contract in this state by failing to perform acts required by the
contract to be performed in this state.” § 48.193(1)(a)(7), Fla. Stat.
2. “Operating, conducting, engaging in, or carrying on a business or business
venture in this state or having an office or agency in this state.” §
48.193(1)(a)(1), Fla. Stat.
3. “Committing a tortious act within this state.” § 48.193(1)(a)(2), Fla. Stat.
We address Prime Sports’ arguments with respect to each of these acts in turn.
1. Breach of Contract Allegations
Prime Sports argues that its allegation that Williamson breached the express
terms of the Agreement by failing to pay Prime Sports compensation is sufficient to
subject Williamson to jurisdiction for breaching a contract in Florida. The allegation
appears in the Complaint as follows:
That at all relevant times herein mentioned, [Williamson]
breached express terms of the [Agreement] with Plaintiffs
and did so with the intent for Defendants to usurp and
5
In addition to the acts specified in the statute, which give rise to specific
jurisdiction, “[a] defendant who is engaged in substantial and not isolated activity
within this 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.” § 48.193(2), Fla. Stat. This is known as general jurisdiction. It
is undisputed that Prime Sports did not seek to establish general jurisdiction over
Williamson.
6
misappropriate Plaintiffs’ trade/business secrets/business
plans/work product and to usurp and misappropriate the
due compensation owed to Plaintiffs pursuant to the
[Agreement] for same; authorizing/instructing Defendants
. . . to publically [sic] announce to the world that
[Williamson] had signed with same Defendants to serve as
his Global Marketing/Branding firm/Agent; refusing to,
honor, adhere to and perform the terms and conditions of
his [Agreement] with Plaintiffs; failing to and/or refusing
to pay Plaintiffs the due compensation owed to Plaintiffs
pursuant to the [Agreement] with Plaintiffs—all while
knowing that he already had a valid and enforceable
contract for same services with the Plaintiffs herein.
For jurisdiction to lie pursuant to section 48.193(1)(a)(7), the breaching
conduct must be a failure “to perform acts required by the contract to be performed
in [Florida].” (Emphasis added). Here, the allegation, which says nothing about
jurisdiction or Florida’s long-arm statute, is silent as to whether the breaching
conduct occurred in Florida or whether performance was required in Florida.
Moreover, the Agreement itself does not require any acts to be performed in Florida.
Prime Sports contends that even though the Agreement is silent as to where
payment was to be made, the legal presumption is that a debt is to be paid at the
creditor’s place of business. See Unger, 513 So. 2d at 676. While it is true that there
is a legal presumption that debt is to be paid at the creditor’s place of business—
even in the absence of an agreement to do so—the allegations in the Complaint say
7
nothing about this. In other words, there is no allegation in the Complaint that
Williamson breached by failing to pay a debt in Florida. 6
Indeed, in the cases Prime Sports relies on in support of this legal
presumption, though the agreement may have been silent, the complaint alleged
jurisdiction based on a payment that was to be made in Florida. See Aspsoft, Inc. v.
WebClay, 983 So. 2d 761, 766 (Fla. 5th DCA 2008) (“It is sufficient for purposes of
satisfying the first prong of the Venetian Salami analysis that a complaint allege that
a contract was made by a resident plaintiff with a non-resident defendant and that
payment was agreed to have been made in Florida.” (emphasis added)); Smith
Architectural Group, Inc. v. Dehaan, 867 So. 2d 434, 436–37 (Fla. 4th DCA 2004)
(“In this case, the complaint alleged sufficient jurisdictional activity to bring this
action within Florida’s long-arm statute. [Defendant] contracted with a Florida
company and agreed to make payment to the company in Florida.”); Unger, 513 So.
2d at 676 (“The complaint clearly alleges the breach of an agreement that payment
was to be made in Florida.” (emphasis added)); Guritz v. Am. Motivate, Inc., 386
So. 2d 60, 61 (Fla. 2d DCA 1980) (“[Plaintiff’s] complaint alleges in part . . .
[Defendant] has done acts enumerated in Section 48.193, Florida Statutes, . . . which
acts are more particularly described as follows . . . breaches a contract in this state
6
Ford’s Affidavit states that Williamson breached the Agreement when he signed a
contract with CAA to be his exclusive marketing agent. The Affidavit is also silent
as to any breach of contract for failure to pay a debt in Florida.
8
by failing to perform acts required by the contract to be performed in this state, and
more particularly failing to make payment for the goods sold and delivered by the
plaintiff to the defendant in Bradenton, Manatee County, Florida.” (emphasis
added)).
2. Business Allegations
Prime Sports also argues that “the allegations of the complaint and the
evidence in the affidavit demonstrate clearly that Williamson is subject to long-arm
jurisdiction because he was ‘operating, conducting, engaging in, or carrying on a
business or business venture in this state.’” Prime Sports fails to cite the specific
allegations or evidence it is referring to. Moreover, Prime Sports actually admits in
its Answer Brief that this specific argument was not raised below.
Prime Sports primarily relies on three cases in support of its argument that
Williamson, despite not having a local presence in Florida, was engaged in sufficient
business activities in Florida: Bank of Wessington v. Winters Government Securities
Corp., 361 So. 2d 757 (Fla. 4th DCA 1978); American Financial Trading Corp. v.
Bauer, 828 So. 2d 1071 (Fla. 4th DCA 2002); and Gray v. ACT Holdings, Inc., 05-
21987-CIV, 2006 WL 8433399 (S.D. Fla. June 1, 2006). However, these cases are
readily distinguishable.
In Bank of Wessington, the Fourth District considered the “collective
activities” of a nonresident bank, which included ten separate oral contracts with a
9
registered Florida broker during a two-month period to buy and sell Government
National Mortgage Association Future Contracts. 361 So. 2d at 760. The court
concluded these activities were sufficient to show that the defendant bank was
engaged in a general course of business in Florida for pecuniary benefit. Id. In
Bauer, a resident of Texas initiated more than 120 transactions with a Florida
commodities investment firm to trade approximately 2,540 commodities options
over approximately a one-year period. 828 So. 2d at 1073. The court concluded
that these transactions, which involved more than $465,000, showed a general course
of business activity in Florida. Id. at 1074. Finally, in Gray, Mr. Gray, a Florida
resident, sued two California defendants for unjust enrichment after he was not paid
for approximately 100 telephone conversations and for raising a total of $323,000
from Florida investors between December 2004 and January 2005 (Mr. Gray had
also previously helped with other investments). 2006 WL 8433399, at *1. The US
District Court for the Southern District of Florida concluded it could exercise long-
arm jurisdiction because the nonresident defendants “conducted business in Florida
because they used a Florida resident to secure investments and to solicit Florida
investors.” Id. at *3. Moreover, Mr. Gray’s claim for unjust enrichment arose from
the nonresident defendants’ business activities in Florida. Id.
Here, by contrast, over a nearly one-month period, there was only one instance
of payment for an endorsement deal under the Agreement, which was for a television
10
commercial for the movie “Hobbs & Shaw.” It is undisputed that Prime Sports
received $100,000 directly from the producers, retained a 15% commission, and sent
the balance of $85,000 to Williamson. But this single transaction is not the same as
the collective business activities in the above-cited cases. Moreover, it is not clear
how any of Prime Sports’ claims arise from this transaction, as required by the long-
arm statute. See Fincantieri, 241 So. 3d at 945 (“Section 48.193(1)(a) lists several
specific acts that could subject a nonresident defendant to personal jurisdiction in
Florida, provided that the plaintiff’s cause of action ‘arises from’ the specified
acts.”).
3. Tort Allegations
According to the allegations in the Complaint, in May 2019, Ford met
Williamson in California and provided him with an “extensive and comprehensive”
marketing plan, which included numerous multi-million-dollar opportunities that
Prime Sports had obtained for Williamson. The Complaint further alleges that
Williamson represented he was requesting the marketing plan to facilitate a direct
working relationship between CAA, Williamson’s NBA Agent, and Prime Sports
and that Williamson knew “the stated reason/intent . . . was false, misleading and
untrue . . . .” According to Prime Sports, these allegations establish long-arm
jurisdiction over Williamson under section 48.193.(1)(a)(2) (“Committing a tortious
act within this state.”).
11
Prime Sports relies on Machtinger v. Inertial Airline Services, Inc., 937 So.
2d 730 (Fla. 3d DCA 2006) for the proposition that fraudulent misrepresentations
from outside of Florida that are relied on in Florida and result in injury in Florida are
tortious acts committed within the state for the purposes of long-arm jurisdiction. In
Machtinger, the complaint alleged that the defendants conspired to obtain payment
for work that was not completed. Id. at 733. In furtherance of this conspiracy, one
of the defendants “allegedly submitted fraudulent invoices for the work to the
[Plaintiff’s] Florida headquarters, misrepresented to [Plaintiff’s] officers in Florida
that the work had been completed, signed [Plaintiff’s] checks for payment on the
fraudulent invoices, and mailed the checks to Florida to obtain countersignatures.”
Id. This Court determined that Florida could exercise long-arm jurisdiction based
on the allegations in the Complaint.
Importantly, this Court noted:
[T]the amended complaint sufficiently allege[d] that
the fraud could not have occurred but for [defendant’s]
misrepresentations to [plaintiff’s] officers who reside,
work, and control the corporation’s finances in Florida.
[Plaintiff] allege[d] that the fraudulent misrepresentations
were made in Florida, relied upon in Florida, and
[plaintiff] countersigned and issued the checks from
Florida. Therefore, [plaintiff] has successfully alleged that
a substantial portion of the tortious acts occurred in Florida
making personal jurisdiction over [defendant] proper.
Id. at 735.
12
 Conversely, the allegations Prime Sports relies on in its Complaint do not
mention Florida nor do they mention Florida’s long-arm statute. In fact, it is unclear
from the allegations whether the alleged misrepresentations were made at in-person
meetings between Prime Sports and Williamson, all of which occurred outside of
Florida, or whether the misrepresentations occurred via telephone or email. 7 Prime
Sports contends that its Affidavit “expanded on the allegations by averring that all
of Williamson’s requests, including the request to meet in California, were directed
to Plaintiffs in Florida.” But it was not the requests to meet that were allegedly
fraudulent but the reasons for requesting the marketing plan. The Affidavit does not
say anything about the allegedly fraudulent reasons for requesting the marketing
plan being directed to Florida; it simply states that the invitations to all in-person
meetings outside of Florida were sent by Williamson to Florida phone numbers,
email addresses, and office addresses.
III. CONCLUSION
Because Prime Sports has failed to allege sufficient jurisdictional facts to
bring its action within the ambit of Florida’s long-arm statute, we reverse the denial
7
The allegations seem to undermine Prime Sports’ position. According to the
Complaint, “on or about May 23, 2019,” Williamson met with Ford in California.
Moreover, on that same day, “[Williamson], and/or his parents, requested that [Ford]
provide them with a copy of Plaintiff’s extensive and comprehensive marketing plan
. . . .”
13
of Williamson’s motion to dismiss for lack of personal jurisdiction. 8 We remand
without prejudice to amend the Complaint. See Henderson v. Elias, 56 So. 3d 86,
90 (Fla. 4th DCA 2011) (holding that dismissal of a complaint for insufficient
jurisdictional allegations should be without prejudice to amend).
Reversed and remanded.
8
Because the statutory prong of Venetian Salami has not been satisfied, it is
unnecessary to address the more demanding constitutional inquiry.
14