Get Back to Where You Once Belonged? Court Affirms Dismissal for Lack of Personal Jurisdiction and in Light of Forum Selection Clause

In Don’t Look Media LLC v. Fly Victor Ltd., 999 F.3d 1284 (11th Cir. June 4, 2021), the Eleventh Circuit affirmed the dismissal of RICO and state-law claims against an English company and its directors and officers for lack of personal jurisdiction and in light of the forum selection clause included in the parties’ contract.

Don’t Look Media (a Delaware LLC based in Florida) licensed its private jet booking website to Fly Victor (an English company based in London). The parties’ contract called for Fly Victor to invest in increasing traffic to the site, and for the parties to share booking revenues. The contract also included a provision stating that “[t]he courts of England shall have exclusive jurisdiction to adjudicate any dispute which arises out of or in connection with this Participation Agreement, provided that Victor shall be entitled to take proceedings relating to this Participation Agreement in any other jurisdiction.” 

After the agreement’s term ended, Don’t Look claimed that Fly Victor did not invest in the site as agreed, and never intended to. Don’t Look sued Fly Victor and several related individuals (all English) in the United States District Court for the Southern District of Florida. The complaint included RICO and state-law claims, and—as initially drafted and served—cited Florida’s long-arm statute as the basis for personal jurisdiction.

A process server served Fly Victor at its London offices, but couldn’t locate the individual defendants, so left their documents at the office, too. After that, Fly Victor’s counsel told Don’t Look that it could “cancel any further efforts [of the] process server, as we will not be contesting service of process in our motions.” Later, Don’t Look amended its complaint to allege personal jurisdiction based on RICO’s provision for nationwide service of process.

The defendants moved to dismiss the complaint, citing Fed. R. Civ. P. 4(e), 12(b)(2), 12(b)(3), and 12(b)(6). The defendants argued that the district court lacked personal jurisdiction over them, and that venue was improper in light of the forum selection clause in the parties’ contract. The district court granted the motion, and Don’t Look appealed.     

The Eleventh Circuit, in an opinion written by Judge Marcus and joined by Judge Jill Pryor and Judge Newsom, affirmed. First, the court held that Don’t Look failed to meet its burden to produce evidence to support the district court’s exercise of personal jurisdiction over the defendants. The first step is to identify a statute conferring jurisdiction, and the statute on which Don’t Look relied was RICO’s service-of-process provision. But that statute provides for service “in any judicial district,” not outside of the United States. As such, service of process in London failed to meet the statute’s requirements. And defense counsel’s indication that the defendants would not contest “service of process” did not amount to consent to jurisdiction, because lack of personal jurisdiction and insufficient service of process are two distinct defenses, and the defendants’ lawyer’s e-mail affected only the second.

The court also affirmed dismissal based on the forum selection clause included in the parties’ agreement, though it noted that the defendants’ motion should have been cast as one based on forum non conveniens rather than improper venue. Don’t Look argued that the provision had been procured by fraud, but the court determined that Don’t Look failed to make the required “strong showing” that enforcement of the clause would be unfair or unreasonable—especially considering that Don’t Look had negotiated at least some provisions of its contract with Fly Victor, and identified no reason it could not have objected to this one. Don’t Look also argued that the clause should not be enforced because it permitted Fly Victor (and not Don’t Look) to file an action outside of England, but the court rejected that argument, finding no cases suggesting that reciprocity is required. The court also rejected the argument that Don’t Look’s claims fell outside the scope of the clause—“[h]ere, the forum selection clauses could hardly be broader.” And the court made short work of the argument that it would be unfair to Don’t Look to have to bring its claims in the foreign court: “There is no reason to think the English courts will be unable to discern and fairly apply the governing law, whatever it may be.”

Posted by Valerie Sanders.

Back to top