Kaplanis v JBI Inc Et Al Doc 15 Filed 23 Nov 10

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MICHAEL KAPLANIS,

Plaintiff,

v. Case No.: 8:10-cv-02140-EAK-AEP

JBI, INC., a Nevada Corporation, and

JOHN BORDYNUIK, an Individual,

Defendants.

___________________________________/

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

Plaintiff, MICHAEL KAPLANIS, by and through his undersigned counsel, files this

Response to Defendants‟, JBI, INC. and JOHN BORDYNUIK, Motion to Dismiss. Plaintiff

also, in the alternative, cross-moves for leave to conduct discovery as to personal jurisdiction of

JOHN BORDYNUIK and for leave to amend the Complaint.

MEMORANDUM OF LAW AND DISCUSSION

Plaintiff will not restate the well-known Fed. R. Civ. P. 12(b)(6) standards here. As to

the Fed. R. Civ. P. 12(b)(2) Motion, Section 48.193 is Florida's long-arm statute. The statute

states in relevant part as follows:

Acts subjecting person to jurisdiction of courts of state

(1) Any 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 the doing

of any of the following acts:

Case 8:10-cv-02140-EAK-AEP Document 15 Filed 11/23/10 Page 1 of 19

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(a) Operating, conducting, engaging in, or carrying on a business or business

venture in this state or having an office or agency in this state.

(b) Committing a tortious act within this state.

(f) 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:

1. The defendant was engaged in solicitation or service activities within

this state . . .

(g) Breaching a contract in this state by failing to perform acts required by the

contract to be performed in this state . . .

(2) 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

. . .

F.S.A. 48.193 (West, 2010).

Therefore, the statute allows for personal jurisdiction to be conferred in two ways. Per

sub-section (1), Florida can exercise "specific" jurisdiction over a defendant relating to the

specific transaction(s) at issue in the underlying claim. Per sub-section (2), Florida can exercise

"general" jurisdiction over a defendant whose activity in Florida reaches a certain level, whether

or not those activities relate to the transaction(s) alleged in the lawsuit.

Here, Plaintiff submits that this Court has both specific and general personal jurisdiction

over Mr. Bordynuik. 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 his 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


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solicited Plaintiff to work for JBI by in part offering to Plaintiff Mr. Bordynuik's personal stock.1

Pursuant to 48.193(f), pleading in the alternative, Mr. Bordynuik has breached an oral promise to

Plaintiff to devise him his personal stock.

As to general jurisdiction, pursuant to 48.193(2), Mr. Bordynuik's contacts with the State

of Florida, even outside the scope of his official duties with JBI, have been extensive enough for

this Court to confer personal jurisdiction over him. The corporate shield doctrine does not

insulate Mr. Bordynuik because the aforementioned contacts were outside the scope of his

employment with JBI, and also constituted fraud or intentional misconduct.

Plaintiff is not confined to the allegations of the pleadings in responding to Mr.

Bordynuik's personal jurisdiction defense. Chudasama v. Mazda Motor Corp., 123 F.3d 1353,

1367 (11th Cir. 1997) (a motion to dismiss for lack of personal jurisdiction may require looking

outside the complaint to make a meaningful ruling). Accordingly, this Response will rely not

only on the allegations of the Complaint, but also evidence outside of the Complaint.

Additionally, Mr. Bordynuik's Rule 12(b)(2) Motion is procedurally deficient as he has

failed to attach any affidavit or other verification to his motion, including his own. Accordingly,

the evidence set forth in this Response, which are established by affidavit, must be accepted as

true for purposes of the motion.

A. This Court Exercises Personal Jurisdiction Over Mr. Bordynuik

As the Defendants agree, the proper exercise of personal jurisdiction over a non-resident

defendant involves a two-part inquiry, including a determination of personal jurisdiction under

Florida‟s long-arm statute and under the “minimum contacts” analysis. Plaintiff can meet both

elements here.

1 Plaintiff seeks leave to amend his complaint to add counts for intentional misrepresentation (fraud) and breach of

oral contract as described in Section E below.


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1. The Allegations Of The Complaint Establish Specific Personal

Jurisdiction.

As acknowledged by the Defendants, a plaintiff may satisfy its burden to plead the basis

for long-arm jurisdiction by either alleging the language of the long-arm statute without pleading

supporting facts, or by alleging facts that indicate that the defendant‟s actions fit within one of

the sections of the statute. Beck v. Hooshmand, 841 So.2d 561 (Fla. 2003).

As to Section 48.193(1)(a), Plaintiff has alleged that Mr. Bordynuik is conducting a

business or business venture in Florida. Plaintiff alleges that “Kaplanis signed the contract at

issue in Pinellas County, Florida, the contract called for work to be performed in Pinellas

County, Florida, and said work was performed in Pinellas County, Florida.” See Complaint, ¶ 6.

Furthermore, Mr. Kaplanis pled that Mr. “Bordynuik was the CEO and President of JBI, and he

had authority to act on behalf of JBI.” See Complaint, ¶ 11. Moreover, Mr. Kaplanis pled that

Mr. “Bordynuik informed [him] that his job duties were to assist JBI‟s CFO Ron Baldwin in

timely filing the quarterly report and to prepare a „term sheet‟ to assist in the launch of

Plastic2Oil.” See Complaint, ¶ 17.

As to Section 1(b), Plaintiff has alleged that Mr. Bordynuik committed the tortious act of

negligent misrepresentation within Florida. For example, Mr. Kaplanis pled that the negligent

misrepresentations by Mr. Bordynuik “were made for purpose of inducing [him] to rely or act

upon in executing the Agreement and performing his job duties under the Agreement.” See

Complaint, ¶ 47. Mr. Kaplanis has shown that the basis for the claim for negligent

misrepresentation against Mr. Bordynuik is due to negligent statements being made to induce

Mr. Kaplanis to continue working for JBI, Inc. in Florida. More proof of Mr. Bordynuik‟s

contacts with Florida is provided in the sections below.


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As to Section 1(f)(1), Mr. Bordynuik solicited Plaintiff's employment in Florida, and

therefore "engaged in solicitation . . . services" pursuant to that sub-section. See Complaint, ¶

45.

2. Evidence Outside The Complaint Further Establishes This Court's

Specific Jurisdiction Over Mr. Bordynuik.

Attached as Exhibit "A" is Plaintiff's declaration authenticating the evidence referenced

in this section.

a. Mr. Bordynuik's Securities Promotion

Mr. Bordynuik offered Plaintiff his own "personal stock" in JBI to induce him to work

for the company. (See Ex. "A" at ¶ 3). In doing so, Mr. Bordynuik was acting outside of his

corporate capacity. Mr. Bordynuik's January 28-31, 2010 emails with Plaintiff state in relevant

part as follows:

From: John Bordynuik [mailto:[email protected]]

Sent: Sunday, January 31, 2010 11:58 AM

To: Michael Kaplanis

Cc: Geoffrey C. Weber

Subject: Re: Follow up

. . .

Please don't trade the stock during the next 3 weeks -- you can expect FINRA to pull all the transactions

after this massacre.

Power Plays: There have been a few between Steve Seneca (PakIt) and others who wish control. I know

you are moving to Florida but JBI Admin and Executive are being scattered all over North America. I

don't believe we need a centralized office other than Accounting Controls (limited to compliance and

reporting only -- Florida). . .

--------------------------------------------------------------------------------------------------

On Sat, 2010-01-30 at 18:33 -0600, Michael Kaplanis wrote:

Hi John,


mailto:[email protected]

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I was thinking we call it “Executive Vice President of Mergers, Acquisitions and Strategy.”

. . .

Best,

Michael

--------------------------------------------------------------------------------------------------------------------

On Sat, Jan 30, 2010 at 3:45 PM, John Bordynuik <[email protected]> wrote:

We are a go.

$120k & I'll issue 100k shares from my stock.

You'll have an agreement this weekend. Please execute and we proceed. I'll send the job description with

it.

Gregg has helped on this...

Your title should be: VP Mergers & Acquisitions or VP ??

--------------------------------------------------------------------------------------------------

On Thu, 2010-01-28 at 17:57 -0600, Michael Kaplanis wrote:

Hi John,

I hope you are well. Geoff gave me your cell and I left a message. I think Geoff's advice to both of us is to

keep it simple. I agree with him. You and I have agreed to the terms, and think we are very close to

making this finalized.

I'd like to hit the ground running with you and making myself helpful ASAP. I'm available anytime

tonight. My cell is 312-497-9665.

Talk to you soon,

Michael

(See Ex. "A" at ¶ 3) (redacted above for the sake of brevity) (emphasis added). Therefore, Mr.

Bordynuik offered "my stock" to Plaintiff to induce him to work for the company. (Id.). This

means that Mr. Bordynuik was stepping outside of his official duties to engage in his own



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individual offering of securities. Mr. Bordynuik was serving as a promoter of stock. Clearly,

this is the type of activity that is not protected by the corporate shield doctrine, putting aside for

the moment federal securities regulations relating to the promotion of stock. See Estate of

Canavan v. Nat’l Healthcare Corp., 889 So.2d 825 (Fla. 2d DCA 2004) (finding that negligence

by an officer, even if performed in the capacity as a corporate officer, constitutes tortuous

conduct that is not shielded from personal liability). Similarly, other Florida case law holds that

officers of a corporation may be held liable for their own torts even if such acts are performed as

corporate officers); McElveen v. Peeler, 544 So. 2d 270 (Fla. 1st DCA 1989); Orlovsky v. Solid

Surf, Inc., 405 So. 2d 1363, 1364 (Fla. 4th DCA 1981).

Mr. Bordynuik's above-cited email came two days after another email he wrote to

Plaintiff on this same subject which makes it even clearer that Mr. Bordynuik acted beyond the

scope of his duties in personally soliciting Plaintiff's employment:

---------- Forwarded message ----------

From: John Bordynuik <[email protected]>

Date: Thu, Jan 28, 2010 at 11:52 AM

Subject: Re: Contract

To: Michael Kaplanis <[email protected]>

Cc: Geoff Weber <[email protected]>

Hello Mike,

. . .

I will provide the agreement I used for Jacob and Ron Kurp. The stock is coming from my holdings so

the exchanges can't get funny about it. It is 500k out of my pocket so I am dealing with Gregg on the

agreement.

My concern is how to deal with the employee stock option plan and salary. Cash salaries hit the bottom

line hard and don't look like value-based management. The SEC created S-8 stock (or options) stock to

allow a growth company to grow without having to pay exec salaries because the S-8 stock can be sold

into the market as cash.They are securities registered for sale the moment I file it. They have been abused





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in the past so the SEC looks at these closely which will then in turn cause a greater flurry of requests to

come from FINRA and the SEC.

Our problem at this time is how implement a stock option plan without creating precedents I can't

support. Baldwin is a prime example with "salary in escrow". He has no stock though...

I appreciate your research on the matter and I am looking into how we can compensate everyone and

include room for new execs. If we can hammer a plan out then I believe it will work.

Do you have time this afternoon do discuss how we can accomplish this with you & everyone else? I

would like to bring you on board ASAP.

(See, Ex. "A" at ¶ 4) (redacted above for the sake of brevity) (emphasis added).

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 the 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).

b. Mr. Bordynuik's Other Inducement Of Plaintiff

Geoff Weber was formerly the Assistant Secretary for JBI and was engaged by JBI as a

consultant to launch the "Plastic2Oil" ("P2O") concept. (Ex. "A" at ¶ 5). Mr. Weber is based in

Florida and worked extensively with Mr. Bordynuik. (Id.). Mr. Bordynuik clearly availed

himself of Florida and its benefits through this relationship. For example, a January 31, 2010

email chain includes emails authored by Plaintiff, Mr. Weber and Mr. Bordynuik which

extensively discusses the work that Plaintiff was to do in Florida. (Ex. "A" at ¶ 6).


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As stated, Mr. Bordynuik wrote another email to Plaintiff where he stated that “I know

you are moving to Florida but JBI Admin and Executive are being scattered all over North

America. I don‟t believe we need a centralized office other than Accounting Controls (limited to

compliance and reporting only -- Florida).” (Ex. "A" ¶ 7). Mr. Bordynuik went on to state that

Linda Burr “can support you in FL.” (Id.). Clearly, Mr. Bordynuik was aware that Mr. Kaplanis

is working for him out of Florida, he wants him to work there, and knows Mr. Kaplanis is

moving there at Mr. Bordynuik’s direction to complete the goals of the company due to Mr.

Bordynuik‟s negligent misrepresentations about the work.

Further, Mr. Bordynuik has sent hundreds of emails directed to the Plaintiff and to the

Florida based Plastic2Oil Consulting Team regarding work for a global launch of the Plastic2Oil

concept. (Ex. "A" ¶ 8). Mr. Bordynuik induced Plaintiff to work for JBI in Florida based on

representations that Plaintiff would be working closely with JBI's "Florida Team," which

consisted primarily of Florida-based consultants. (Id. at ¶ 9). Separately, JBI entered into an

Area Development Agreement with AS PTO, LLC with the purpose of establishing forty-five

Plastic2Oil sites to be located within Florida. (Id. at ¶ 10). The signed letter of intent of the

establishment of the Area Development Agreement was announced by the company on

December 22, 2010, and the contact person on the press release is John Bordynuik. (Id.). The

company stated that “Mr. Sousa‟s company will begin to quickly cultivate supply chains and

sites for installation of P2O sites throughout Florida concentrating first on large metropolitan

areas and expanding outwards.” (Id.). Clearly, Mr. Bordynuik initiated a global launch of his

flagship business venture known as Plastic2Oil from Florida. (Id.). In a press release, the

company said that it is “pleased to announce that on February 12, 2010, JBI consummated an

Area Development Agreement (ADA for 45 P2O sites in the State of Florida with a newly


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formed entity (AS PTO, LLC) controlled by Al Sousa of Largo, Florida.” (Id.). Mr. Bordynuik

signed this agreement (Id.).

This evidence further establishes contacts sufficient for this Court to exercise personal

jurisdiction over Mr. Bordynuik pursuant to Section 48.193(1)(b) and 1(f)(1). This evidence

corroborates that Mr. Bordynuik fraudulently induced Plaintiff to work for the company pursuant

to sub-section 1(b), and also engaged in the business of soliciting Plaintiff pursuant to sub-

section 1(f)(1).

c. Mr. Bordynuik's Other Extensive Contacts With Florida

When assessing personal jurisdiction over a nonresident corporate officer, Florida courts

do not totally ignore acts that the defendant may have undertaken in his or her corporate

capacity. See e.g., Mehlenbacher v. Jitaru, 6:04-c-1118-ORL-22KRS (M.D. Fla. June 6, 2005).

In Mehlenbacher, a shareholder of a publicly-traded company brought a derivative suit against

one of the company's nonresident officers personally in a Florida court. Id. at *3. In exercising

personal jurisdiction pursuant to the Florida Long-Arm Statute, the Middle District noted that the

nonresident officer was "no ordinary (alleged) third party tortfeasor." Id. at *14. "He is a

corporate director and audit-committee member of a Florida-based company." Id. The Court

went onto note that because of these positions the officer could not claim surprise at being hauled

into a Florida court. Id. See also, West Coast Life Ins. Co. v. Ruth Secaul 2007-1 Ins. Trust,

Case No. 09-81049-CIV (S.D. Fla., Jan. 5, 2010) (holding that “individual officers and agents of

a corporation may be held personally liable for their tortious acts, even if such acts were

committed within the scope of their employment or as corporate officers” when they are acting

as the alter-ego of the corporation).


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Likewise, Mr. Bordynuik is no ordinary third party. Mr. Bordynuik's co-Defendant, JBI,

does not contest that this Court can exercise personal jurisdiction over it. According to the

company‟s 10-K/A filed with the SEC on July 9, 2010, JBI, Inc. was originally incorporated on

April 20, 2006 in the State of Nevada as 310 Holdings Inc. (“310”), and 310 had no significant

activity from inception through March 2009 except for a planned merger with G&G Mining

Corp., a Florida Corporation, which was never completed. (Ex. “A” ¶ 11). In April 2009, John

Bordynuik purchased 63% of the issued and outstanding shares of 310, and was subsequently

appointed President and CEO of the Company. (Id.). During June, 2009, the Company

purchased certain assets of John Bordynuik, Inc., a Delaware corporation. (Id.). JBI, Inc. is the

successor to “John Bordynuik, Inc.” (Id.). In a sense, therefore, JBI is the alter-ego for Mr.

Bordynuik himself, and if this Court has personal jurisdiction over "JBI," it is not much of

stretch, even setting aside all other evidence presented to demonstrate personal jurisdiction, to

assert that this Court also has personal jurisdiction over its controlling shareholder, chairman,

director, executive and namesake. See e.g., West Coast Life Ins. Co., at *7 (indicating that alter-

ego theory may be another exception to corporate shield doctrine).

Mr. Bordynuik also owns interests in several related entities that are doing business and

even based in Florida. (Ex. “A” ¶ 12). JBI itself has several affiliates, including Pak-It, LLC, a

Florida limited liability company (Pak-It). (Id.). This testimony is further supported by the

information found at the following Internet links: http://www.jbiglobal.com/products-and-

services/Plastic2Oil.aspx (showing Pak-It on the JBI "products and services" page) and

http://www.pakit.com/ (identifying Pak-It as "a JBI, Inc. company"). (Id.). Pak-It was formed in

Florida and, as of this date, public records show its principle place of business to be 311 Park

Place, #190, Clearwater, FL 33759 (Id. at ¶ 13). Indeed, when Mr. Bordynuik provided Mr.


http://www.jbiglobal.com/products-and-services/Plastic2Oil.aspx

http://www.jbiglobal.com/products-and-services/Plastic2Oil.aspx

http://www.pakit.com/

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Kaplanis with his notice of termination without cause letter informing him of his termination in

sixty (60) days, Mr. Bordynuik directed Mr. Kaplanis to work for him out of this Clearwater,

Florida office. (Id.). Additionally, when Mr. Bordynuik provided Mr. Kaplanis with a

termination for cause letter, the basis for the termination as described in said letter was due to

purported failure to appear at this Clearwater office for his work. (Id.).

Further, public records indicate that Mr. Bordynuik is the Manager of Pak-It, LLC, which

is a Florida Limited Liability Company. (Id. at ¶ 14). The Florida Department of State, Division

of Corporations website verifies this information, and notes that Mr. Bordynuik can be reached

in his capacity as the manager of Pak-It, LLC through the same Clearwater, Florida exact address

down to the suite number where he directed Mr. Kaplanis to report for work in his sixty day

notice of termination letter. See http://www.sunbiz.org/scripts/cordet.exe?action=DETFIL&inq_

doc_number=L07000058980&inq_came_from=NAMFWD&cor_web_names_seq_number=000

0&names_name_ind=N&names_cor_number=&names_name_seq=&names_name_ind=&names

_comp_name=PAKIT&names_filing_type=. This means that Mr. Bordynuik is also representing

to the Florida Department of State that he has a Florida address where he is available to be

reached.

Pursuant to Florida law, managers (or managing members) of a Florida LLC owe certain

fiduciary duties. See e.g., F.S.A. § 608.4225. Accordingly, Mr. Bordynuik has personally

interjected himself into a relationship which mandates that he adhere to fiduciary duties as

defined by Florida law. Additionally, Pak-It owns Dickler Chemical Laboratories, Inc., another

Florida corporation and public records list Jacob Smith as a Director and Dr. Smith is the Chief

Operating Officer of JBI, Inc. (Ex. “A” ¶ 14).


http://www.sunbiz.org/scripts/cordet.exe?action=DETFIL&inq_%20doc_number=L07000058980&inq_came_from=NAMFWD&cor_web_names_seq_number=0000&names_name_ind=N&names_cor_number=&names_name_seq=&names_name_ind=&names_comp_name=PAKIT&names_filing_type=




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Also, Mr. Bordynuik has regularly traveled to Florida to promote and operate JBI and its

various subsidiaries. (Id. at ¶ 15). For example, Plaintiff knows that Mr. Bordynuik has

travelled to Florida on at least two occasions during recruitment trips to engage JBI employees

and consultants, including a meeting with Plaintiff personally. (Id. at ¶ 15). Along those lines,

multiple SEC filings (including but not limited to 10-K, 10-K/A, 10-Q, 10-Q/A, 8-K, and 8-K/A

– all of which are available to the public through the SEC‟s website) filed by JBI, include many

references to Florida. (Id. at ¶ 16). Specifically, for example, in an 8-K/A dated January 27,

2010, there were 26 references to “Florida” and in a 10-K dated March 31, 2010, there were 33

references to “Florida”. (Id.). Mr. Bordynuik has also interacted with his various companies'

accountants and other professionals located in Florida. (Id. at ¶ 17). Mr. Bordynuik also

presented at the Annual Shareholders‟ Meeting in April 2010 that there would be a two-

processor parallel site in the Tampa Bay area of Florida and had several Florida residents answer

questions from shareholders including Ronald Baldwin (CFO of JBI), Geoffrey C. Weber

(Former Assistant Secretary of JBI and was a Business Consultant for JBI), Al Sousa (Area

Developer for Florida Plastic2Oil sites and Manager of AS PTO, LLC, a Florida entity). (Id. at ¶

18).

d. Evidence Outside The Complaint Establishes This Court's

General Jurisdiction Over Mr. Bordynuik

In addition to the evidence set forth in the remainder of Section 2 above showing Mr.

Bordynuik's contacts with Florida, Mr. Bordynuik is the registrant, administrative contact and

technical contact of an internet domain name, www.heatherbordynuik.com, and he has held that

status since 2004. (Ex. "A" ¶ 19). The address that Mr. Bordynuik listed is "John Bordynuik,

1901 60th Place, Suite L9181, Bradenton, Florida 34203." Overall, the evidence shows Mr.

Bordynuik's repetitive and extensive contacts with Florida.


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3. The exercise of personal jurisdiction over Mr. Bordynuik does not

comport with traditional notions of fair play and substantial justice

Given these contacts with Florida outside of those specifically provided in the Complaint,

the minimum contact analysis has been satisfied. The minimum contacts requirements of due

process are satisfied in this case, as (1) there was purposeful availment of the forum state, (2) the

alleged contacts gives rise to the alleged cause of action, and (3) Mr. Bordynuik should

reasonably anticipate being hauled into court in a forum state, as required under Burger King

Corp. v. Rudzewicz, 471 U.S. 462 (1985). A review of Mr. Bordynuik‟s contacts with the forum

state, as the Defendants purport is required under Consolidated Energy, Inc. v. Strumor, 920

So.2d 829, 832 (Fla. 4th

DCA 2006), clearly demonstrates satisfaction of all three prongs of the

minimum contacts requirements. The exercise of personal jurisdiction over Mr. Bordynuik

comports with the traditional notions of fair play and substantial justice. As has been

demonstrated in Section 2 above, Mr. Bordynuik was conducting a great amount of business in

and reaching out to Florida that relates to the claims against him in this lawsuit. As such, the

fairness concern is not disturbed by bringing suit against him individually in Florida.

B. Plaintiff has stated a claim against JBI and Mr. Bordynuik for an Equitable

Accounting (Count II).

Factual statements to support the properly asserted language have been provided.

Specifically, Mr. Kaplanis has pled that he “was entitled to be compensated in the form of

incentives and/or stock options under the terms of the Agreement, and the Defendants failed to

pay all incentives and/or stock options due.” See Complaint, ¶ 41. Such incentives and stock

options are going to be difficult to determine, and are not specifically defined or calculated under

the Agreement, such that a legal remedy is not going to be sufficient. As such, an equitable

remedy is appropriate and has been specifically requested in Count II.


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Moreover, the elements for a claim of equitable accounting have been asserted. As is

well known, the Court must accept as true the allegations in the complaint in reviewing a motion

to dismiss. Stephens v. Dep't of Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990).

Thus, the count for equitable accounting is proper.

Finally, to the extent the Court agrees with the Defendants‟ position that a claim for

equitable accounting is precluded by a count for breach of contract, the claim for equitable

accounting should only be dismissed as to JBI. The breach of contract claim is only based on a

breach by JBI. Thus, the equitable accounting claim may be precluded as to JBI. However, the

only other count against Mr. Bordynuik is for negligent misrepresentation in Count III, not the

count for breach of contract. Thus, the claim for equitable accounting must remain as to Mr.

Bordynuik, minimally, if not for both Defendants.

C. Plaintiff’s Claims Against Mr. Bordynuik in Count II and III of the Complaint

Should Not Be Dismissed Under the Corporate Shield Doctrine.

1. Mr. Bordynuik's Motion Is Unsupported By Any Affidavit And

Therefore Is Procedurally Deficient

Mr. Bordynuik contests the Plaintiff's allegations establishing that this Court has personal

jurisdiction over him. Florida courts generally require defendants in Mr. Bordynuik's position to

file an affidavit in support of his or her position. See e.g., Venetian Salami Co. v. Parthenais,

554 So. 2d 499, 502-503 (Fla. 1989). When the defendant does so, it is incumbent on the

plaintiff to submit a counter-affidavit, and the court should hold an evidentiary hearing as to the

limited issue of jurisdiction if there is a conflict in the relevant jurisdictional facts. Id.

Here, Mr. Bordynuik has not submitted any affidavit to support his motion, yet he

contests this Court's personal jurisdiction over him. The Complaint, as set forth above, alleges

facts establishing this Court's personal jurisdiction over Mr. Bordynuik. Mr. Bordynuik could


16

have easily proffered an affidavit specifying his lack of contacts with Florida if he possessed

such facts. Aside from the intent of Venetian Salami¸ the fact that Mr. Bordynuik did not submit

an affidavit speaks volumes as to his ability to deny his extensive contacts with Florida.

2. Regardless of the Failure to Comply with the Requirement to File an

Affidavit, the Corporate Shield Doctrine Does Not Apply

"It is true that the so-called 'corporate shield' doctrine immunizes from suit a corporate

employee acting in his corporate capacity.'" Byron v. Marine Carriers (USA), Inc., 668 So. 2d

273, 274 (Fla. 1996). "However, the corporate shield doctrine has no application when the

corporate officer commits an intentional tort." Id. See also, Allterton v. State Dept. of Insur.,

635 So. 2d 36, 39 (Fla. 1994) (doctrine did not protect nonresident investment advisor engaged

in various schemes performed on behalf of Florida insurance company because that defendant's

conduct was calculated to cause injury to plaintiff in Florida); Koch v. Kimball, 710 So. 2d 5, 7

(Fla. 1998) (doctrine inapplicable because defendant's conduct was calculated to cause injury to a

plaintiff "here in Florida"); State v. Wyndham Int'l, Inc., 869 So. 2d 592, 595-96 (Fla. 2004)

(Florida had personal jurisdiction over nonresident defendants because they were the "primary

participants" in an alleged, fraudulent hotel surcharge scheme); see also Estate of Canavan, 889

So.2d at 827.

Here, the doctrine does not immunize Mr. Bordynuik because he was acting beyond his

"corporate capacity" as to the alleged misconduct. Mr. Bordynuik, as stated, served as a

promoter of his own personal stock in inducing the Plaintiff to work for the company. Mr.

Bordynuik also acted outside the scope of his employment in forming an oral contract between

Plaintiff and Mr. Bordynuik personally (as to Mr. Bordynuik's personal stock).


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Further, the Complaint and the attached evidence establish that Mr. Bordynuik committed

fraud or intentional misconduct against the Plaintiff, a Florida resident. Plaintiff also seeks leave

to amend his Complaint to further allege such misconduct, as explained in more detail below.

D. PLAINTIFF’S ALTERNATIVE CROSS-MOTION SEEKING LEAVE TO

CONDUCT DISCOVERY ON PERSONAL JURISDICTION

While Plaintiff believes that Mr. Bordynuik has sufficient contacts with Florida to

establish personal jurisdiction, should this Court find that the pleadings and the briefing on

Defendants' motions do not clearly establish personal jurisdiction, Plaintiff requests leave to

conduct limited discovery on the issue of personal jurisdiction. “A plaintiff faced with a motion

to dismiss for lack of personal jurisdiction is entitled to reasonable discovery, lest the defendant

defeat the jurisdiction of a federal court by withholding information on its contacts with the

forum." Exhibit Icons, LLC v. XP Cos., LLC, 2008 U.S. Dist. LEXIS 15971 (S.D. Fla. March 3,

2008) (quoting El-Fadl v. Cent. Bank of Jordan, 316 U.S. App. D.C. 86, 75 F.3d 668, 676 (D.C.

Cir.1996). Notably, Plaintiffs are not privy to the information that relates to any other contacts

Mr. Bordynuik has had with Florida.

Eleventh Circuit precedent indicates that jurisdictional discovery is highly favored before

resolving Federal Rule of Civil Procedure 12(b)(2) motions to dismiss for want of

personal jurisdiction. See Eaton v. Dorchester Development, Inc., 692 F.2d 727, 731 (11th Cir.

1982); see also Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997) (a

motion to dismiss for lack of personal jurisdiction may require limited discovery so that a

meaningful ruling can be made); Majd-Pour v. Georgiana Community Hosp., Inc., 724 F.2d 901,

903 (11th Cir. 1984) ("[a]lthough the plaintiff bears the burden of proving the

court's jurisdiction, the plaintiff should be given the opportunity to discover facts that would

support his allegations of jurisdiction"); Blanco v. Carigulf Lines, 632 F.2d 656, 657 (5th Cir.


https://www.lexis.com/research/buttonTFLink?_m=a8697dc0b2d462a0d692d7287e1b2649&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b2008%20U.S.%20Dist.%20LEXIS%2015971%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=4&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b692%20F.2d%20727%2c%20729%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=2&_startdoc=1&wchp=dGLzVzz-zSkAz&_md5=cc0104e91cb4ccec899f9eb0b32a647f

https://www.lexis.com/research/buttonTFLink?_m=a8697dc0b2d462a0d692d7287e1b2649&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b2008%20U.S.%20Dist.%20LEXIS%2015971%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=4&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b692%20F.2d%20727%2c%20729%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=2&_startdoc=1&wchp=dGLzVzz-zSkAz&_md5=cc0104e91cb4ccec899f9eb0b32a647f

18

1980) (dismissal was error where defendants had not responded to plaintiff's

interrogatories); Skidmore v. Syntex Laboratories, Inc., 529 F.2d 1244, 1248-49 (5th Cir.

1976) (held "that the district court acted too drastically in entering its order of dismissal without

giving plaintiff a further opportunity for discovery" even though defendants had answered 184

interrogatories).

Many of the documents possessed by Plaintiff that have been attached hereto as Exhibits

demonstrate a basis for personal jurisdiction and could allow for discovery requests that would

likely establish a greater connection to the forum state of Florida. Accordingly, Plaintiff requests

leave to conduct discovery on the issue of personal jurisdiction, so as to obtain information to

which Mr. Bordynuik has access in the event that the Court does not deny the Defendants'

Motion outright.

E. PLAINTIFF’S MOTION FOR LEAVE TO AMEND THE COMPLAINT TO

ADD COUNTS FOR NEGLIGENT MISREPRESENTATION, INTENTIONAL

MISREPRESENTATIONS AND FRAUD AGAINST DEFENDANTS

Plaintiff requests this Court allow leave to file an Amended Complaint to add counts

against JBI for negligent misrepresentation, intentional misrepresentation and fraud relating to

Mr. Bordynuik‟s actions to induce Mr. Kaplanis to invest in JBI. To the extent these actions

were seemingly not done in Mr. Bordynuik‟s capacity as a corporate officer, Plaintiff also

requests leave to amend the Complaint to add counts against Mr. Bordynuik for intentional

misrepresentation and fraud. Plaintiff also 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. Upon information and belief through the investigation of this matter in reviewing

documents in the preparation of this pleading, Plaintiff‟s counsel believes these counts are

appropriate to supplement in an Amended Complaint in this matter.


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WHEREFORE, Plaintiff respectfully requests this Court enter an Order denying

Defendants‟ Motion to Dismiss, grant leave, in the alternative to denial of Defendants‟ Motion to

Dismiss, to conduct discovery on the personal jurisdiction of this Court over the Defendants, to

amend his Complaint, and award such other and further relief that this Court deems just and

appropriate.

Dated: November 23, 2010

/s/ Jonathan T. Gilbert____________

JONATHAN T. GILBERT, ESQ.

Florida Bar No. 0064823

FELDMAN, FOX & MORGADO, P.A.

2701 N. Rocky Point Dr., Suite 1000

Tampa, FL 33607

Phone: (813) 639-9366

Fax: (813) 639-9376

Email: [email protected]

Attorney for Plaintiff

CERTIFICATE OF SERVICE

I HEREBY CERTIFY on this 23rd

day of November, 2010, I filed the foregoing with

the clerk of the court by using the CMIECF system. I FURTHER CERTIFY that the

foregoing document is being served this day on all counsel of record via transmission of Notices

of Electronic Filing generated by CM/EFC, as follows:

Cathy Beveridge, Esq.

Fowler White Boggs

501 E. Kennedy Boulevard

Suite 1700

Tampa, FL 33602

/s/ Jonathan T. Gilbert____________

JONATHAN T. GILBERT, ESQ.



Documents

Kaplanis v JBI Inc Et Al Doc 15 Filed 23 Nov 10